MEIAPPIN Vs. DASARATHA CHETTIAR DIED

JUDGEMENT

(1.) THIS revision is filed against the return of the application filed under Section 47 CPC in E. A. S. R. No. 3552/2000 in E. P. No. 34/1999 in HRCOP No. 34/1996 on the file of the Principal District munsif, Pondicherry .

(2.) FACTS which led to this revision are as follows: - 2. 1. The demised premises in HRCOP No. 34/1996, on the file of the Rent Controller Pondicherry, and other adjacent properties belonged to Dasaratha Chettiar. The third Respondent, who is one of the partner of BUJ travels became a Tenant under Dasaratha Chettiar on 11. 09. 1992 and was running his business in the premises. Dasaratha Chettiar filed HRCOP No. 34/1996 under section 10 3 (C) of Pondicherry Buildings and House Rent Control Act, for eviction on the ground of personal use and occupation. Eviction was ordered on 10. 01. 1997. Dasaratha Chettiar filed E. P. No. 22/1997 on the file of Principal district Munsif, Pondicherry. The third Respondent prayed for one year time for delivery of possession. Since possession was not delivered, Dasaratha Chettiar subsequently filed e. P. No. 34/1999 for taking delivery. In the said proceedings, Dasaratha Chettiar was represented by the second Respondent as his Power of Attorney. 2. 2. Dasaratha Chettiar died on 29. 11. 1999. The petitioners, second Respondent and Respondents 4 to 7 are the sons and daughters of Dasaratha Chettiar. 2. 3. After the death of Dasaratha Chettiar, claiming that dasaratha Chettiar had bequeathed all his properties, the second Respondent filed E. A. No. 7/2000 in E. P. No. 36/1999 to implead himself as the second respondent, as legatee of his father. The Executing Court has allowed the same, permitting the second Respondent to be impleaded as the second Respondent and to continue the execution proceedings. In the mean time, the third Respondent was set exparte on 10. 01. 2000 and third Respondent has filed E. A. No. 60/2000 to set aside that exparte Order. 2. 4. The Petitioners have filed E. A. SR. No. 3552/2000 to implead themselves as parties to the execution Petition. According to the petitioners, on the death of Dasaratha Chettiar, they have taken possession of the shop and they have leased the shop to the second Respondent under two separate lease Agreements and they have been collecting rent from the second respondent. Petitioners denied the genuineness of the alleged Will through which the second Respondent claims right. Therefore, the Petitioners have filed e. A. SR. No. 3552/2000 on 20. 04. 2000 to implead themselves as parties to the execution proceedings. 2. 5. That application was filed on 20. 04. 2000 and the same is said to have been received by the Court on 20. 04. 2000 and an endorsement was made as'check and call on 24. 04. 2000'. The Petitioners have alleged that the lower Court has unjustly struck off the entries in the registers and returned the Petition with endorsement'documents in respect of proposed parties to be filed','time till 07. 06. 2000'and the said return is challenged in this Revision Petition.

(3.) THE first Petitioner has filed O. S. No. 14/2001 on the file of the Additional Sub Court , Pondicherry for partition of his 1/7th share in the properties. In the said suit, the first Petitioner has challenged the Will in favour of the second Respondent. After full trial, partition suit O. S. No. 14/2001 was dismissed. Producing the copy of the Judgment in O. S. No. 14/2001 [dated 19. 04. 2006], the learned Counsel for the second respondent has submitted that when the suit for partition filed by the petitioner was dismissed, nothing survives for consideration in the Petition filed under Section 47 CPC by the Petitioners and hence suitable directions are to be given to the Executing Court to proceed with the execution proceedings.