MUTHULAKSHMI AMMAL Vs. SHANMUGAVEL

JUDGEMENT

(1.) The revision petitioner is the second plaintiff in the suit in O.S.No.786 of 1986, on the file of the District Munsif Court, Ambasamudram. The said suit has been preferred by the revision petitioner and others against one Madarpandian / third respondent herein and others for partition. It is found that the above said partition suit had ended in a preliminary decree, dated 16.07.1991, after contest, thereby the entitlement of the plaintiffs in the said suit for 23/64th share in the suit properties had been declared. Pursuant to the same, it is found that the plaintiffs moved an application in I.A.No.876 of 2001 for passing the final decree in the said suit. Pending the final decree application, it is found that the plaintiffs and the contesting defendants had entered into a compromise among themselves and accordingly, on the memorandum of compromise submitted by them and the parties having admitted the same to be correct, accordingly, it is found that recording the said compromise, the final decree has been passed in the suit in terms of the compromise and that the compromise entered into between the parties would form part of the final decree. The final decree was passed in the suit on 28.08.2001.

(2.) As per the terms of the compromise entered into between the parties concerned, it is found that the revision petitioner has been allotted the first item of the suit properties and the remaining items of the suit properties have been allotted to the third respondent herein and it is also found that as per the terms of the compromise, the revision petitioner should take the possession of the property allotted to her through Court process.

(3.) Pursuant to the passing of the final decree, it is found that the revision petitioner has preferred E.P.No.22 of 2003, under Order XXI Rule 35 of the Code of Civil Procedure, for ordering the delivery of the property allotted to her as per the final decree. Pending the execution petition, it is seen that the first respondent had preferred E.A.No.233 of 2003, under Section 2(2) and 151 and Order XXI Rules 47 and 97 of the Code of Civil Procedure and Section 44 of the Indian Evidence Act for declaring that the final decree passed in I.A.No.876 of 2001 is null and void and the revision petitioner and others i.e., the respondents in E.A.No.233 of 2003 are not entitled to seek and obtain the possession of the first item of the suit properties from the first respondent and for other reliefs. The said application filed by the first respondent was resisted by the revision petitioner stoutly and it is found that the parties have also tendered evidence with reference to their respective cases.