S VENKATACHALAM Vs. SUBBIAH

JUDGEMENT

(1.) THIS is a petition for transfer of E.P.No.71 of 1996 and E.P.No.72 of 1996 in O.S.No.256 of 1973 on the file of the learned District Munsif, Tiruppur, to the Sub Court, Tiruppur, for joint enquiry along with O.S.No.534 of 1994.

(2.) IN the affidavit filed in support of the transfer petition, the petitioners alleged that their father filed suit O.S.No.256 of 1993 on the file of Subordinate Judge, Tiruppur, against his brother, mother and sisters. There was preliminary decree in the said suit. The respondents who were parties defendants were granted larger shares in the final decree. The petitioners were minors. But, they were not made parties at all. Hence, they filed the present suit O.S.No.534 of 1994 on the file of Sub Court, Tiruppur, against the respondents claiming 2/6th share in all the properties. Taking advantage of the decree in O.S.No.256 of 1973, the 3rd respondent filed E.P.No.71 of 1996 and the second respondent filed E.P.No.72 of 1996 on the file of the District Munsif, Tiruppur for executing the final decree. They attempted to dispossess the petitioners. The final decree cannot be executed in the suit O.S.No.534 of 1994. It is one of the issues in their suit and on which till the decision is arrives, the execution should not be allowed. Hence the petitioners seek to transfer the R.P. as mentioned above.

(3.) EVEN though, this petition is only a transfer petition, since the learned senior counsel as well as the counsel for the respondents argued at length with reference to the rights of the parties, there is necessity for going into the rights of the parties to some extent. Unless the court finds that some right there as claimed by the petitioners in the suit properties notwithstanding the final decree dated 10.2.1993 in O.S.No.256 of 1973, there is no necessity for transferring the execution proceedings to the Sub Court, Tiruppur, where the petitioners have filed the comprehensive suit for partition which is pending.