RETHNASWAMY Vs. JUSTIN

JUDGEMENT

(1.) The suit in O.S.No.28 of 1964, on the file of the Additional District Munsif Court, Kuzhithurai, has been laid for partition and redemption. It is found that a preliminary decree has been passed in the said suit on 07.08.1990, whereunder the plaintiff had been declared to be entitled to 5/54th share in the property involved in the suit and further directions have also been given in the preliminary decree. It is found that thereafter, the plaintiff had preferred I.A.No.1703 of 1980 to pass the final decree. It is found that the Advocate Commissioner, who had been appointed to inspect the property concerned, had inspected the property and filed his report with plan and it is also found that pending final decree application, the sole plaintiff died and his legal heir, namely, the revision petitioner had been brought on record. As seen from the records, on 24.09.2001, the final decree had been passed in the above mentioned suit allotting Plot-A, in Survey No.786, measuring an extent of 24.250 Cents, to the plaintiff. Thereafter, it is found that the revision petitioner had filed E.P.No.99 of 2002 for the delivery of the Plot-A ordered to be allotted to him in the final decree. It is found that the Amin, who had been deputed to effect the delivery, had effected the delivery of the said plot to the revision petitioner. Resisting the recording of delivery of the same, it is found that the contesting respondent had preferred E.A.No.59 of 2004 on the footing that the plaintiff is entitled to only 24.250 Cents as per the final decree passed in the suit, whereas he had been given delivery of excess extent and therefore, the delivery should not be recorded.

(2.) On the basis of the materials placed before the Court below in the above said E.A.No.59 of 2004, it is found that the Executing Court finally held that the delivery effected by the Amin is not correct and accordingly, refused to record the order of delivery. Challenging the same, it is found that the revision petitioner had preferred C.R.P.(NPD) No.1181 of 2004. In the said civil revision petition, after considering the rival contentions put forth by the respective parties, this Court had held that the correct measurements have not been done by the Amin, who had been deputed to effect delivery and also holding that inasmuch as the Amin was not able to say whether the exact extent of the area as provided in the final decree has been delivered, held that the order of the Executing Court refusing to record the delivery is perfect and accordingly, dismissed the revision petition above mentioned filed by the revision petitioner. However, it is also found that this Court, considering the facts and circumstances of the case, ordered that it is open to the revision petitioner to file a fresh application to direct the Amin to go and visit the property and take suitable measurements with the help of the Surveyor to enable the Executing Court to pass further orders in the execution petition.

(3.) In tune with the above said direction of this Court in the above mentioned civil revision petition, according to the revision petitioner, he has preferred E.A.No.263 of 2004 and as seen from the papers placed, the above said application has been preferred by the revision petitioner to depute the Amin to measure the whole property with the help of the Surveyor to find out whether the delivered area is in excess of 5/54th share of the whole property. The said application was stoutly resisted by the contesting respondent by filing a counter.