APS NAPIS BANU Vs. A.L.TAJUDDIN

JUDGEMENT

(1.) This Civil Revision Petition is filed by the third defendant in the suit in O.S.No.2246 of 1996 on the file of the I Additional District Munsif, Trichy, as against the order passed in I.A.No.1092 of 2011 in I.A.No.173 of 2005 in I.A.No.1645 of 1997 in O.S.No. 2246 of 1996, dtd. 22/1/2013.

(2.) A partition suit came to be filed in O.S.No.354 of 1972 on the file of the Sub Court, Trichy, by one B.B.Jhon and Habeeda Bi. The plaintiffs are the paternal aunts of the revision petitioner.

(3.) The revision petitioner is the third defendant in the suit. Though the trial Court decreed the suit in respect of 'B' schedule property by allotting 1/4 share to each of the plaintiffs, the first plaintiff preferred an appeal in A.S.No.314 of 1977, aggrieved by the dismissal of suit in respect of 'A' schedule. Since the appeal in A.S.No.314 of 1997 was also dismissed, a Letters Patent Appeal in L.P.A.No.5 of 1985, was filed before this Court. A Division Bench of this Court by judgment and decree dtd. 7/4/1989, allowed the appeal in part and granted relief to the plaintiffs to get 1/8 share each in items 1, 2, 5 and 6 of plaint 'A' schedule also. The third defendant was declared to be entitled to get 1/2 share in the four items in 'A' schedule. The defendants 1 and 2 are entitled to 1/8 share each. The claim of the plaintiffs in respect of item Nos.3 and 4 in plaint 'A' schedule covered by Ex.A.2, which was marked in the suit, was negatived. As per the judgment and decree of this Court in L.P.A.No.5 of 1985, the plaintiffs are entitled to get 1/8 share each in items 1, 2, 5 and 6 in plaint 'A' schedule apart from 1/4 share in plaint 'B' schedule. By the judgment and decree of this Court in L.P.A.No.5 of 1985, the suit was also decreed in respect of items 1, 2, 5 and 6 of 'A' schedule. The decree has become final. The suit in O.S.No.354 of 1972 was transferred to District Munsif Court, Trichy and re-numbered as O.S.No.2246 of 1996. Thereafter, an application was filed for passing of final decree in I.A.No.1645 of 1997 in O.S.No.2246 of 1996, (originally O.S.No.354 of 1972). After considering Commissioner's report and the attitude of plaintiffs and the defendants 1 to 3, the lower Court found that the property, namely, item Nos.1, 2, 5 and 6 of plaint 'A' schedule and 'B' schedule property cannot be divided conveniently and that all the properties can be sold by public auction so that the parties can get proportionate amount. An application was also filed on behalf of the plaintiffs in I.A.No.173 of 2005 in I.A.No.1645 of 1997 to appoint an Advocate Commissioner to fix the date for auction, advertise in dailies about auction, framing conditions to bidders and regarding other aspects of such auction sale.