1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.08.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A(MD)No.971 of 2011 and MP(MD)No.1 of 2011 1.Michael 2.Inbaraj 3.Martin Arockiaraj 4.Ramasamy 5.Lazar .. Appellants/Respondents 2 to 6/Defendant 2 to 6 Vs. 1.Adaikalam .. 1st Respondent/Plaintiff 2.Haja Alavudeen .. 2nd Respondents/1st defendant Civil Miscellaneous Appeal filed under Order 43 Rule 1 (r) of the Code of Civil Procedure against the order dated 28.06.2011 passed in I.A.No.43 of 2011 in Original Suit No.13 of 2011 by the Principal District Court, Pudukottai. For Appellants : Mr.G.Sridharan JUDGMENT The impugned order dated 28.06.2011 passed in I.A.No.43 of 2011 in Original Suit No.13 of 2011 by the Principal District Court, Pudukottai is being challenged in the present Civil Miscellaneous Appeal. 2. The first respondent herein as plaintiff has instituted Original Suit No.13 of 2011 on the file of the Court below praying to pass a preliminary decree in respect of his share. During pendency of the same, the petition in question has been filed in I.A.No.43 of 2011 under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 praying to deter the respondents/defendants from creating any encumbrance in respect of the suit property. The Court below after analysing the divergent contentions put forth on either side has allowed the same. Against the order passed by the Court below, the present Civil Miscellaneous Appeal has been preferred by the respondents 2 to 6/defendants 2 to 6. 3. Considering the nature of relief sought for in Original Suit No.13 of 2011 as well as in I.A.No.43 of 2011 and also considering the nature of the impugned order, this Court is of the view that notice need not be sent to the respondents and this Civil miscellaneous Appeal is disposed of on merits at the stage of admission on the basis of the contention put forth on the side of the appellants /respondents 2 to 6/defendants 2 to 6. 4. The learned counsel appearing for the appellants has contended that even though the plaintiff has claimed half share in the suit property by way of filing Original Suit No.13 of 2011 the Court below has https://hcservices.ecourts.gov.in/hcservices/ 2 deterred the respondents/defendants not to create any encumbrance in respect of the entire suit property and therefore, the order passed by the Court below is liable to be interfered with. 5. As stated earlier, Original Suit No.13 of 2011 has been instituted for getting the reliefs of partition and separate possession of the share of the plaintiff. 6. Considering the nature of the reliefs sought for in Original Suit No.13 of 2011 and also considering the nature of the relief sought for in I.A.No.43 of 2011 this Court is of the view that no flaw is in existence in the impugned order passed in I.A.No.43 of 2011 and the Court below can be directed to dispose of Original Suit No.13 of 2011 as indicated below. 7. In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous petition is also dismissed and the order passed in I.A.No.43 of 2011 in Original Suit No.13 of 2011 by the Principal District Court, Pudukottai is confirmed. The defendants are directed to file their written statement before the end of September 2011. The Principal District Court, Pudukottai is directed to dispose of the suit before the end of November 2011 and report the same to the Registry without fail. The Principal District Court, Pudukottai is also directed to dispose of the suit on merits without giving much adherence to any observation made in the impugned order. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To The Principal District Judge, Pudukottai. Mj GH : 29.08.2011 : 2p/2c C.M.A(MD)No.971 of 2011 24.08.2011 https://hcservices.ecourts.gov.in/hcservices/