1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.09.2011 CORAM: THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P(PD)(MD)No.723 of 2011 and M.P.(MD) Nos.1 & 2 of 2011 Ramdass .. Petitioner/Defendant -vs- T.P.Kathiresan .. Respondent/Plaintiff PRAYER: Civil Revision Petition is filed under Article 227 of the Constitution of India, setting aside the order in unnumbered E.A.No. of 2011 in E.P.No.26 of 2010 in O.S.No.10 of 2007 dated 25.03.2011 on the file of the District Munsif Court, Sivakasi and to taken up on file the unnumbered E.A.No. of 2011. For Petitioner : Mr.A.Sivaji For Respondent : Mr.S.Subbiah ORDER The respondent/tenant in E.P.No.26 of 2010, on the file of the District Munsif Court, Sivakasi, has filed the above Civil Revision Petition, challenging the order passed in un-numbered application filed in E.P.No.26 of 2010, returning the petition as not maintainable. 2. The respondent/tenant has filed the un-numbered application in E.P.No.26 of 2010 to stay the execution proceedings till the disposal of the suits in O.S.No.1 of 2008 and O.S.No.142 of 2010, on the file of the District Munsif Court, Srivilliputhur. On 25.03.2011, the District Munsif Court, Sivakasi, returned the application with the following endorsement:- "Decree copy in O.S.No.1 of 2008 of District Court, Srivilliputhur produced in the accompanying return up 47 C.P.C. Hence this revision is not maintainable at this stage." 3. Aggrieved over the return of the application, the tenant has filed the above Civil Revision Petition. 4. Heard Mr.A.Sivaji, learned counsel appearing for the petitioner and Mr.S.Subbiah, learned counsel appearing for the respondent. 5. The learned counsel appearing for the respondent submitted that the revision petitioner has filed a petition in I.A.No.454 of 2010 in O.S.No.142 of 2010, on the file of Principal District Court, Virudhunagar District at Srivilliputhur for injunction restraining the respondent from executing the decree in O.S.No.10 of 2007, on the file of the District Munsif Court, Sivakasi. 6. It is not in dispute that the execution petition in E.P.No.26 of 2010, arises in the suit in O.S.No.10 of 2007. The revision petitioner sought for stay of the execution petition till the disposal of the suits in O.S.No.1 of 2008 and O.S.No.142 of 2010, on the file of Principal District https://hcservices.ecourts.gov.in/hcservices/ 2 Court, Srivilliputhur. The relief sought for by the revision petitioner in I.A.No.454 of 2010 in O.S.No.142 of 2010 and the relief sought for in the present application, which is under challenge in the present Civil Revision Petition, are one and the same. It is also not in dispute that the revision petitioner has filed 47 application in I.A.No.27 of 2010 in E.P.No.26 of 2010, which is also pending before the District Munsif Court, Sivakasi. The execution Court while returning the papers as not maintainable has stated that the decree copy in O.S.No.1 of 2008, on the file of the District Munsif Court, Srivilliputhur was produced in the 47 application, therefore, the present application is not maintainable. The suit in O.S.No.1 of 2008 was filed by the plaintiff therein for the relief of partition and a preliminary decree was passed in O.S.No.1 of 2008. The copy of the preliminary decree was produced by the revision petitioner in the 47 Application. Since, it is a suit for partition and only a preliminary decree was passed the revision petitioner has sought for stay of the execution petition, till the disposal of the suits in O.S.No.1 of 2008 and O.S.No.142 of 2010. Therefore, just because, the revision petitioner has filed a copy of the preliminary decree in O.S.No.1 of 2008 in the 47 application, it cannot be said that the present application is not maintainable. However, I am not expressing any opinion with regard to the merits of the application filed by the revision petitioner. 7. Therefore, the order of the District Munsif Court, Sivakasi passed in the un-numbered in E.P.No.26 of 2010 is liable to be set aside. Accordingly, the same is set aside. The District Munsif Court, Sivakasi shall number the application and dispose of the application on merits and in accordance with law along with the Section 47 C.P.C application in I.A.No.27 of 2010 in E.P.No.26 of 2010 on or before 10th November, 2011. 8. With the above observations, the Civil Revision Petition is allowed. There shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CO) /True copy/ Sub Assistant Registrar(CS) To The District Munsif cum Judicial Magistrate, Sivakasi. +1 CC to Mr.A.Sivaji, Advocate, SR.No.30730 ps C.R.P(PD)(MD)No.723 of 2011 09.09.2011 TR L 13.09.2011 : 2p/3c : IT https://hcservices.ecourts.gov.in/hcservices/