The court ruled that a second suit for partition is not maintainable if a previous decree regarding the same property exists, emphasizing the rights of a lis pendens purchaser to appeal.

JUDGMENT :

V. LAKSHMINARAYANAN, J.

This case has a checkered history. The suit schedule mentioned properties are items belonging to one Chinna Mallegoudu @ Mallaiah. Mallaiah and his wife Ammaiakka @ Puttamma had one son by name Puttiah and 5 daughters namely Mallamma (deceased), Jayamma, Devarajamma, Dhakshayini @ Sulochana and Nirmala. Mallamma seems to have passed away leaving behind her husband Mahadevan and three daughters namely Sailashri, Bhuvanashri, Sudhashri as her legal heirs.

2. Tmt.Mallamma filed a suit for partition and separate possession in O.S.No.105 of 1974 on the file of the District Munsif Court at Hosur. She sought for the relief of partition by metes and bounds and separate possession of her 1/7^th share. The present suit schedule mentioned property namely S.No.225 of Arulam village in Denkonikottai taluk, Dharmapuri District (presently Krishnagiri District) is shown as item 1 of the suit schedule mentioned property in O.S.No.105 of 1974. Summons were issued in the said suit and the defendants entered appearance before the Court on 28.06.1974. The suit was decreed as prayed for, with costs.

3. To put the preliminary decree so obtained into operation, an application was taken out for passing of final decree in I.A.No.1144 of 1975. The said final decree application was allowed on 26.04.1975. At the time of final decree, it was noticed that there were practical difficulties in dividing the house and house sites and therefore, the plaintiff therein, Mallamma, gave up her right with respect to house and house sites and in lieu of this giving up of her share, she was alloted additional extent of 1.40 cents to her share in Survey No.225 of the aforesaid Village.

4. Mallamma initiated execution proceedings to take possession of the properties situated in S.No.225. The Execution petition was numbered as R.E.P.No.2 of 1976. The learned District Munsif at Hosur ordered delivery of possession of the property on 29.01.1976 and the delivery was taken on 01.02.1976 and execution petition was terminated on 19.02.1976. By virtue of the aforesaid proceedings, Mallamma became the absolute owner of the suit schedule mentioned property.

5. All things were quiet for a period of nearly 40 years. The defendants 2, 4, 5 & 6 in O.S.No.105 of 1974 presented a fresh suit for partition in O.S.No.128 of 2005. In the meantime, as Mallamma had passed away her legal heirs Mahadevan, Sailashri, Bhuvanashri and Sudhashri were impleaded as defendants 2 to 5. They were served with summons and it seems they had also filed written statement giving forth the details of the previous suits. After having filed the statement they remained exparte. Consequently, the trial Court passed the judgment in the following terms:

6. This exparte decree was passed on 15.12.2005. In order to set aside the exparte judgment and decree, an application was taken for condonation of delay of 40 days in filing the petition under Order 9 Rule 13 CPC. This application was numbered as I.A.No.99 of 2007. It was application was allowed on the condition of payment of cost of Rs.500/- on or before 21.04.2008. Since the cost was not paid, the application stood dismissed on 25.04.2008. As the preliminary decree had already been passed in the proceedings, an application was taken out for passing of final decree in I.A.No.489 of 2008. This application was allowed by an order of the Court, on 05.09.2011.

7. While these are the Court proceedings, the defendants in O.S.No.128 of 2005, namely legal heirs of Mallamma, sold the property in favour of the appellant Chinnappa. He registered his sale through a deed dated 07.05.2007. When the Advocate Commissioner visited the suit property, the appellant herein, who was a 3^rd party to the proceedings, seems to have objected to the Advocate Commissioner stating that he had purchased the property. Without taking note of this objection, the Advocate Commissioner submitted a report, which resulted in passing of the final decree, dated 05.09.2011.

8. Co