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2008 DIGILAW 2611 (MAD)

Unnamalai Ammal v. Ramakrishnan Mudaliar

2008-07-23

S.TAMILVANAN

body2008
Judgment :- 1. This Civil Revision Petition has been preferred against the order, dated 29.01.2008 made in E.A.No.558 of 2007 in V.O.S.No.333 of 1981 on the file of the Principal District Munsif, Tindivanam. 2. It is seen that the revision petitioner herein had filed the application in E.A.No.558 of 2007 under Order 6 Rule 16 and 17 r/w Section 151 CPC, whereby sought permission to amend/strike out certain portion of the averments in her counter. It was resisted by the respondent herein. 3. Mr.V.S.Sivasundaram, learned counsel appearing for the revision petitioner contended that the averments were made wrongly by the counsel for the petitioner, which would prejudice the rights of the petitioner herein and therefore, by way of amendment, the petitioner be permitted to strike out the portion of his averments in the counter. 4. As per the counter already filed at paragraph number 2, as respondent therein, the revision petitioner has made some admissions, hence, it was objected to by the respondent herein, saying that the petitioner knowingly admitted certain facts in the counter, however, subsequently, in order to erase the admission, has filed this petition for amending the counter, which is not at all maintainable in law. 5. It is not in dispute that the suit in V.O.S.No.333 of 1981 was filed for declaration of title and recovery of possession and the same was decreed in favour of the respondent herein. Pursuant to the decree, the respondent filed the Execution Petition before the court below for delivery of possession of the suit properties, the same is pending for about 27 years and the same is not in dispute. On a perusal of the material papers and after hearing the arguments of the learned counsel, I am of the view that it cannot be presumed that the counsel for the petitioner before the executing court had made any averments, without the instructions of the petitioner, prejudicial to her interest. Considering the facts and circumstances, this Court is of the view that permitting the petitioner to strike out certain portion of the averment already made in the counter cannot be permitted, to meet the ends of justice. If it is needed, the petitioner/judgment-debtor can file only an additional counter before the court below. 6. According to the learned counsel appearing for the revision petitioner, the Execution Petition is still pending. If it is needed, the petitioner/judgment-debtor can file only an additional counter before the court below. 6. According to the learned counsel appearing for the revision petitioner, the Execution Petition is still pending. In such circumstances, I find it reasonable to dismiss the revision petition, with a direction to the court below, permitting the revision petitioner/respondent before the court below to file additional counter, if any, within 30 days from the date of receipt of the copy of this order by the court below and dispose the Execution Petition on merits, according to law. According to the learned counsel for the respondent, since the suit is pending for about 27 years, direction may be given to the court below for disposing the E.P, within a time frame. 7. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. The court below is directed to dispose the Execution Petition, according to law on merits, within six months from the date of receipt of the copy of this order. No order as to costs.