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2007 DIGILAW 3872 (MAD)

E. Manoharan & Another v. Vasantha Ammal

2007-11-29

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- Heard the Senior counsel for the revision petitioners and the learned counsel appearing for the respondent. 2. The revision petitioners are Defendants 1 and 2 in O.S.No.174 of 2004 on the file of the Court of District Munsif, Arni which was filed for partition. The learned counsel would fairly admit that the plaint schedule property in O.S.No.174 of 2004 was purchased by the plaintiff and the defendants 1 and 2 jointly and that each one of them is entitled to 1/3rd share in the plaint schedule property in O.S.No.174 of 2004 and an exparte preliminary decree for partition of plaintiffs 1/3rd share was passed by the learned trial Judge and a final decree was also passed on 27. 2006 in I.A.No.103 of 2005 in O.S.No.174 of 2004. 3. The grievance of the revision petitioners is that the petition filed by them before the trial Court to set aside the exparte preliminary decree along with a petition under Section 5 of the Limitation Act to condone the delay in filing the same are pending before the trial Court without numbering the same and that the deendants have no objection for allotting 1/3rd share to the plaintiff and the remaining 2/3rd share to them. Admittedly, there is no appeal preferred by the plaintiff against the exparte preliminary decree passed in O.S.No.174 of 2004 in respect of his 1/3rd share allotted in the preliminary decree in O.S.No.174 of 2004. Under such circumstances, I am of the view that the application to condone the delay filed under Section 5 of the Limitation Act and also the petition to set aside the exparte preliminary decree against the defendants in O.S.No.174 of 2004 are liable to be allowed on payment of cost of Rs.1000/- to be paid to other side. The learned senior counsel appearing for the revision petitioners has paid the cost of Rs.1000/- today to the other side which has been received by the learned counsel appearing for the respondent. 4. Under such circumstances, final decree petition in I.A.No.103 of 2005 in O.S.No.174 of 2004 is ordered to be restored to the file of the learned trial Judge. The revision petitioners herein are directed to file necessary application for declaring their respective shares in the final decree in I.A.No.103 of 2005 in O.S.No.174 of 2004 after paying necessary court fees. 4. Under such circumstances, final decree petition in I.A.No.103 of 2005 in O.S.No.174 of 2004 is ordered to be restored to the file of the learned trial Judge. The revision petitioners herein are directed to file necessary application for declaring their respective shares in the final decree in I.A.No.103 of 2005 in O.S.No.174 of 2004 after paying necessary court fees. After the payment of necessary Court fees before the trial Court in I.A.No.103 of 2005 in O.S.No.174 of 2004, the learned trial Judge after declaring the shares of the parties shall re-issue the warrant of Commission to the Advocate Commissioner, who after giving due notice to the parties , shall file a report and plan allotting respective shares ie., 1/3rd each to the plaintiff and defendants 1 and 2 respectively and then a final decree is to be passed accordingly. 5. With this observation, the revision petition is disposed of. No costs. Consequently, connected M.P.No.1 of 2007 is closed.