1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.03.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(MD)No.482 of 2011 & M.P(MD)No.1 of 2011 1.Rajamma 2.Saratha 3.Swarna Bai ...Petitioners/Respondents 3 to 5/Plaintiffs 3 to 5 -vs- 1.Thankaraj 2.Thankayyan Nadar, S/o. Atchudan Nadar 3.Kamalian 4.Rethinaswamy Nadar 5.Ramaswamy 6.Ponnuswamy 7.Thankappan 8.Velappan 9.Mohanan 10.Victorial 11.Rajayyan 12.Innasi 13.Thankain Nadar 14.Thankaraj Nadar 15.Sankaran Nadar 16.Thanakayyan Nadar, S/o. Narayanan Nadar 17.Ramayyan 18.Dhason 19.Ayyappan 20.Kumaraswamy 21.Muthayyan 22.Kumari Anitha 23.Kumari Beena ..Respondents/Petitioners & Respondents 9 to 20/ Defendants 2,4 to 11,23, 24,13 to 22 and non - parties PRAYER: Civil Revision Petition filed under Section 115 of Code of Civil Procedure to set aside the order and decreetal order dated 03.02.2011 of the learned Principal District Munsif, Kuzhithurai, made in E.P.No.14 of 2005 in O.S.No.139 of 1981 on his file dismissing the said E.P. For Petitioners :Mr.K.N.Thampi For Respondent No.1 :Mr.M.P.Senthil ORDER The First Plaintiff's legal representatives are the petitioners herein challenging the order of the delivery passed by the trial Court in favour of the Eleventh Respondent herein and the Eleventh petitioner before the E.P. Court. 2.The case of the petitioners is that the original suit was filed for partition. A preliminary decree was passed on 24.11.1994 and a final decree was passed on 16.09.2004. In the final decree proceedings, the Eleventh Respondent herein and the Eleventh petitioner in E.P, was added as party pursuant to the order passed by the trial Court in I.A.No.555 of https://hcservices.ecourts.gov.in/hcservices/ 2 2004 dated 13.07.2004, on the ground that he purchased the shares of Defendants 2,4 to 11 and 23 through 23rd defendant. Though there are a number of previous proceeding in the said partition suit, the present revision is filed against the order passed by the execution Court ordering delivery in favour of the eleventh respondent. 3.Mr.K.N.Thampi, learned Counsel appearing for the petitioner submits that the shares allotted to various parties were purchased by the eleventh respondent herein and the extent is only 88.480. However, by the impugned order, the execution Court ordered delivery of entire extent of property namely 1 Acre 24 Cents. Secondly, he submitted that the actual Survey Number is 1518/B, whereas, the delivery order speaks about S.No.518. With these discrepancies and wrong descriptions, the impugned order is not sustainable. Thirdly, he submitted that there are wrong description about the parties also. He further submitted that the 11th respondent is not entitled to get delivery of possession of the property as he is only a subsequent purchaser. 4.On the other hand, the learned Counsel for the respondents submitted that the petitioner/11th respondent validly acquired the lands from the parties to the suit and he has been impleaded as a party as per order of the Court. Even if there are discrepancies in the extent of Survey Number and that cannot be a bar to take possession of the properties as the said errors can be rectified. 5.Heard the learned Counsel on both sides and perused the records. 6.The partition suit is of the year 1981. The preliminary decree was passed on 24.11.1994, determining the rights of the parties and the final decree was passed on 16.09.2004. There are a number of previous proceedings which reached before this Court on various stages. Finally, as on date, the 11th respondent obtained an order in E.P.No.14 of 2005 on 03.02.2011. 7.It is seen from the said order that the 11th respondent herein was impleaded as per order dated 13.07.2004, in I.A.No.555 of 2004 in the said E.P. A perusal of the final decree passed would also confirm that the 11th respondent herein was impleaded as a party to the said final decree proceedings pursuant to his purchase of entire rights of the respondents 1 to 10 herein. Therefore, 11th respondent herein got accrued of his rights and which was also rightly recognised by the Court below and rightly impleaded as a party. Therefore, the petitioner cannot have any grievances in this regard. The judgment of the Honourable Supreme Court in Raj Kumar -vs- Sardari Lal and others reported in (2004) 2 SCC 601 relied upon by the learned Counsel for the respondents also speaks about the right of the transferee to apply for execution of the decree of the Court and he can maintain the execution as if the execution petition was made by the decree holder. Therefore, the 11th respondent herein has got to maintain the E.P and rightly got the delivery of possession. 8.As far as the objections regarding the extent of property is concerned, it is well founded. The final decree speaks the extent of the suit property as 1 Acre 24 Cents comprised in Survey No.1518/B so also the delivery order. However, the 11th respondent is entitled to 88.480 cents alone as he acquired the shares from the respondents 1 to 10 and he is entitled to that extent only. By mistake, the extent has been wrongly described in the delivery order as 1.24 Acres. Therefore, the extent of property should be corrected and read as 88.480 cents. https://hcservices.ecourts.gov.in/hcservices/ 3 9.The Survey Number shown in the final decree is 1518/B. However, in the said order, though it has been correctly described as 1518/B in the Schedule, in the description of the property, it has been wrongly stated as Survey No.518 which is also a inadvertent mistake. Hence, it should be corrected and read as S.No.1518/B. The aforesaid mistakes/errors would not be the cause of action for the petitioners herein to challenge the same. Therefore, the delivery order has to be corrected as follows: Extent of Property :88.480 cents instead of 1.24 Acres. Survey No :S.No.1518/B instead of S.No.518. 10.The aforesaid corrections are made especially in the interest of both parties. If the corrections are made the grievance of the petitioners is also addressed. 11. Therefore, this exercise is being done by this Court here itself exercising its powers under Article 227 of the Constitution of India read with Section 151 Code of Civil Procedure, instead of directing the parties to approach the trial Court for getting of the delivery order and to get new order. It would be an unnecessary and unwarranted exercise if the parties are directed to approach the Court considering the long litigation. To put an end to this matter, this order is being passed. Therefore, the trial Court is directed to issue delivery warrant incorporating the above corrections within a period of one week from the date of receipt of a copy of this order. If the delivery order is issued as per this order, it will not enable the petitioners or other parties to initiate any further proceedings. 12.As already stated by the learned Counsel for the respondent, police protection was also given already and with the help of police protection, warrant issued is directed to be issued for execution and report to this Court on 28.04.2011. 13.With the above directions, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed. SD DEPUTY REGISTRAR ( LA ) /TRUE COPY/ ASST REGISTRAR gsr To:: The Principal District Munsif, Kuzhithurai. 1CC TO MR. K.N. THAMPI, ADVOCATE ON PAYMENT OF CHARGES, SR: 7691: 1CC TO MR. S.P. SENTHIL, ADVOCATE,ON PAYMENT OF CHARGES, SR: 7681: COPY TO: THE SECTION OFFIER, JUDICIAL SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. (FOR WATHCING REPORT BY 28.4.2011) DM:2011:MARCH;28: C.R.P(PD)(MD)No.482 of 2011 23.03.2011 3P:5C:: https://hcservices.ecourts.gov.in/hcservices/