Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 1389 (MAD)

P. Saroja(Died) v. S. Rengaraj

2016-03-31

G.CHOCKALINGAM

body2016
ORDER : This Civil Revision Petition is preferred by the petitioners against the order passed by the learned First Additional Subordinate Judge, Madurai, in E.A.No.575 of 1997 dated 13.09.2004 in E.P.No.164 of 1992 in O.S.No.599 of 1981, in dismissing the amendment application filed under Order 6, Rule 17 of the Civil Procedure Code, to amend the Schedule of the property. 2. The learned Counsel appearing for the petitioners would submit that the trial Court failed to exercise the jurisdiction to amend the E.P and the power of the amendment is vested only with the trial Court. He would further submit that the trial Court failed to note that the respondents 2 and 3 in E.P are impleaded, in which, the defendants D.20 and D.21 in the partition suit in O.S.No.869 of 1981 on the file of the District Munsif Court, Madurai Town and allowed in favour of the defendants D.20 and D.21. In that suit, the share of the father of the revision petitioner was subject to the charge already created in O.S.No.599 of 1981 in favour of the revision petitioner. 3. The lower Court without applying its mind acted against the legal principles and dismissed the amendment petition and hence, it is liable to be set aside. 4. The learned Counsel appearing for the respondents contended that already the charge was created and the contest regarding the independent share of the property cannot be pressed by way of amendment. The trial Court cannot go behind back and the trial Court by applying its mind to the principles of law, passed appropriate order and it does not warrant any interference. 5. It is admitted by both parties that the present petitioner filed a suit for maintenance and a charge decree was passed. Further, there was no appeal filed by either side and the decree has become final and the charge decree was created against the undivided half share of the entire property mentioned in the scheduled property. Hence, no appeal was preferred and the decree has become final and if at all any party wants to seek amendment in the decree, they have to approach the original side and file a petition for amending charge decree and to take appropriate steps. Hence, no appeal was preferred and the decree has become final and if at all any party wants to seek amendment in the decree, they have to approach the original side and file a petition for amending charge decree and to take appropriate steps. Since the charge decree was already passed and became final, the Executing Court has no power to re-settle the issues and the Executing Court cannot go behind and as well as cannot amend the decree which was already passed and became final. 6. Moreover, the decree was already passed in the year 1983 and now, the petitioner wants to file a petition to amend the schedule of the property. It is an admitted case that the present respondents who are decree-holders in the suit are not parties to the partition suit. Further, it is admitted by both sides that the Executing Court cannot amend the decree by effecting the reduction of the property in which the charge was already created in the year 1983 itself, pursuant to the final decree passed in a partition suit on 30.10.1991, i.e. after eight years. Hence, there is no illegality or infirmity in the order of the Court below, which does not warrant any interference by this Court. 7. With the above observations, this Civil Revision Petition is dismissed. No costs.