JUDGMENT :

P.T. ASHA, J.

1. The appellant whose petition filed under the provisions of Order XXI Rules 97 and 99 of the Code of Civil Procedure had been dismissed by the learned Additional District Judge, Dharmapuri, without even registering the said petition is before this Court challenging the said order.

2. The facts in brief which are necessary for disposing of this appeal are as follows:

The 1st respondent had filed a suit O.S. No. 55 of 2012 on the file of the learned Principal District Judge, Dharmapuri, for Specific Performance of the Agreement dated 23.08.2012 entered into between himself and the respondents 1 to 3 herein.

3. In the said suit, the 2nd respondent herein had filed a Written Statement, which has been adopted by the said Kandasamy and the 3rd respondent herein, in which they had referred to a suit O.S. No. 89 of 2014 filed by the appellant herein before the learned Subordinate Judge, Arur seeking partition of the properties, which are the subject matter of the instant suit in O.S. No. 550 of 2012.

4. The learned Additional District Judge, Dharmapuri after trial had proceeded to decree the suit as prayed for by her Judgment and Decree dated 20.08.2015. Pursuant to the said Judgment and Decree in the above suit, the 1st respondent had filed R.E.P. No. 68 of 2014 for execution of the Sale Deed in his favour. The said execution proceedings were dismissed for default on 14.07.2015 and thereafter, the 1st respondent had filed E.P. No. 34 of 2018 for the very same relief. In the said execution proceedings, the appellant herein had filed the impugned petition in EA.S.R. No. 709 of 2019. It is her case that the property in question was an ancestral joint family property in which the petitioner had a 1/5th share. It is also her case that she had issued a Legal Notice dated 09.08.2014 to the said Kandasamy and respondents 2 and 3 seeking a partition of her 1/5th share. Since there was no response to the above notice she had proceeded to file the suit O.S. No. 89 of 2014 for a partition and separate possession of her 1/5th share. It is also her contention that despite the learned Additional District Judge, Dharmapuri, being informed about the said proceedings, the learned Judge had neither framed an issue with reference to the above nor taken into consideration the said defence but had decreed the suit on 05.10.2015 as prayed for. It is therefore her contention that till such time as her share in the property is divided by metes and bounds the possession of the property cannot be handed over to the 1st respondent/Decree holder.

5. The learned Additional District Judge, Dharampuri, without numbering and ordering notice to the respondents proceeded to dismiss the said application on merits. Challenging the said Judgment and Decree the appellant is before this Court.

6. On hearing the submissions of both the counsels the following point arises for consideration in the above First Appeal:

“Whether the learned Additional District Judge, Dharampuri was right in disposing of the petition on merits without numbering the said application and issuing notice to the respondents?”

7. Mr. N. Manokaran, learned Advocate appearing on behalf of the appellant would submit that the appellant has got a Decree for partition in her favour in and by which she is entitled to a share in the suit property. The appellant is yet to file a Final Decree proceedings in and by which her share in the suit property could be demarcated by metes and bounds. In the suit for partition, once the finding has been rendered that the appellant is entitled to 1/5th share in the ancestral property, the 1st respondent herein can seek to have a Sale Deed executed only with reference to the remaining 4/5th share and the possession can be handed only after the share of the appellant and the respondents demarcated and allotted in the final decree proceedings. He would further submit that the procedure adopted by the learned Judge in dismissing the application at the CFR stage