C.R.P. (MD) No. 1353 of 2007 and M.P. (MD) No. 1 of 2007. Case: S.A. Buvaneshwari Vs P.A. Nagarajan. High Court of Madras (India)
| Case Number | C.R.P. (MD) No. 1353 of 2007 and M.P. (MD) No. 1 of 2007 |
| Counsel | For Appellant: M. Thirunavukkarasu, Adv. and For Respondents: F.X. Eugene, P. Santhana Krishnan and S. Natarajan, Advs. |
| Judges | M. Duraiswamy, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Indian Evidence Act, 1872 - Section 68; Indian Succession Act, 1925 - Section 63 |
| Judgement Date | December 09, 2014 |
| Court | High Court of Madras (India) |
Order:
M. Duraiswamy, J.
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Challenging the fair and final order passed in I.A.No. 2 of 2007 in O.S.No. 109 of 2006 on the file of the Principal District Court, Virudhunagar District at Srivilliputhur, the first defendant has filed the above Civil Revision Petition.
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Heard the submissions of the learned counsel for the petitioner and the learned counsels for the respondents 1 to 3 and 5.
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The plaintiff filed the suit in O.S.No. 109 of 2006 for partition. The suit has been filed in respect of several items of suit properties including gold jewellery, which is mentioned in schedule 'C'. The first defendant has filed an application in I.A.No. 2 of 2007 under Order 7 Rule 11 of the Code of Civil Procedure, 1908 to reject the plaint stating that in view of the final decree passed in O.S.No. 122 of 1988 on the file of the Sub Court, Srivilliputtur, the present suit filed by the plaintiff is liable to be rejected. According to the plaintiff, the decree obtained in O.S.No. 122 of 1988 is collusive in nature and that he did not receive any summons in the said suit. The defendants 2 to 5 admitted the decree and pursuant to which, a preliminary decree was passed.
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On a perusal of the plaint filed in O.S.No. 109 of 2006, it could be seen that the plaintiff had averred that he did not receive any summons at the time of passing of preliminary decree. So far as the final decree application and also the Execution Petition in E.P.No. 177 of 2004 are concerned, he has not stated anything about the service of summons. The earlier suit was filed by the first defendant in the year 1988 and a preliminary decree was passed on 08.01.1995 and the final decree was passed on 30.06.2003. The present suit has been filed by the first defendant in the year 2006.
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It is also brought to the notice of this Court by Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioner that pursuant to the final decree passed in the suit, the first respondent has also taken possession of some of the properties. The learned counsel further submitted that except schedule II, which is mentioned in O.S.No. 109 of 2006, all other properties were the subject matter in O.S.No. 122 of 1988 and the description of schedule II at page No. 47 of the typed-set of papers is extracted hereunder:-
"Schedule II
Tirunelveli District, Sankarankovil Taluk,
Sub-Registrar Office Thenmalai VillageS.No. 6 9 0 -2-3 4
S.No. 663/2 - 1-04
Punja lands
S.No. 669/8 - 2-24
S.No. 669/11 -1-9 6"
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