AMMAIYAKKAL Vs. PANDIAN ALIAS ETHILAVULU NAICKER

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the defendants against the order dated 30.6.2008 passed in EP.No,30/2003 in OS.No,337/1997 by the learned District Munsif cum Judicial Magistrate, Bodinayakanur.

(2.) THE respondents have filed a suit in OS.No.1180/1973 before the District Munsif, Periakulam for partition of family properties through their mother/guardian as they were minors while filing the suit. THE said suit was dismissed, as against which the respondents filed an appeal in AS.No,36/1989 and the same was allowed and a preliminary decree was passed on 26.8.1977 granting 3/4th share in items (2) to (8) of the suit properties. THEreafter final decree had also been passed on 16.9.1989.

(3.) THE execution petition has been resisted by the petitioners on the ground that they have been allotted 1 acre 23 cents in S.No.105/2A and the remaining extent of 1 acre 30 cents of land is yet to be allotted in some other survey number and without allotting the remaining 1 acre 30 cents, the petitioners cannot be evicted from the land. It is also contended that the respondents having not filed a certified copy of the preliminary decree in the EP proceedings, they are not entitled for delivery of possession. In the joint memo, the father of the petitioners had agreed to take 1 acre 23 cents on the western side in S.No.105/2A and had also agreed to take the remaining land in some other survey number as decided by the court. Only based on the joint memo the final decree had come to have been passed.