K RAM MOHAN Vs. MOGAL AHMED BALG

JUDGEMENT

(1.) This revision is filed questioning the orders of the Principal District Munsif, Cuddapah dated 12-3-1996 passed in E.A. 404/95 in E.P. 61/93 in O.S. No.249/90 dismissing the said petition filed by the judgment-debtor No. 1, who is the present petitioner.

(2.) The respondent herein had obtained a preliminary decree for partition and separate possession of his 2/3rd share in the suit house and after passing of the ex parte decree on 5-6-91, he filed a petition in LA. 905/92 for passing of final decree. In the said final decree proceedings, an Advocate Commissioner was appointed for effecting division of the suit house for which the respondent herein, who is the decreeholder, is entitled to 2/3rd share while the petitioner herein, who is the first defendant in the suit, is entitled for the remaining 1/3rd share. The Advocate Commissioner visited the suit house and effected partition of the house into three shares and allotted 2/3rd share to the respondent herein and the remaining 1/3rd share to the present petitioner and filed his report along with the plan into Court. The lower Court thereupon passed the final decree allotting 2/3rd share in the house to the respondent and the remaining 1/3rd share to the petitioner herein as per the partition effected by the Advocate-Commissioner. Thereupon, the respondent filed E.P. 61/93 for delivery of possession of the 2/3rd share in the house allotted to him in the final decree proceedings. When the Amin went to effect such delivery, the petitioner raised an objection before him for delivering possession of the 2/3rd share in the house to the respondent on the ground that the decree is inexecutable. The Amin did not, therefore, execute the warrant of delivery entrusted to him. The judgment-debtor No. 1, then approached the Court and filed E.A. 404/95 under Sec. 47 and Sec. 151 C.P.C. contending that there are permanent structures like Haveli (House), bath-room and also water tap in the suit site; that the Commissioner had no right to effect partition of such properties which are not the subject matter of the decree; that the decree passed in the suit is inexecutable and as such the E.P. is liable to be dismissed. After hearing both sides and in view of the material available on record, the learned District Munsif rejected the contention of the petitioner and dismissed the petition observing that the property as described in the suit and which is the subject matter of the decree is capable of partition and can be executed and as such, the petition is not maintainable. Aggrieved by such orders, the judgment debtor No. 1, who is the present petitioner, has filed the present revision.

(3.) Heard both the counsel.