The Petitioner is before this Court seeking for the following

relief:

“a)

Call

for

records

pertaining

to

Ex.No.347/2015 on the file of the Principal

Sr.Civil Judge and CJM at Mysore, peruse

the

order

dated:05-03-2016

vide

Annexure - F and set aside the same as

illegal arbitrary and unsustainable, and

b) Pass such other orders as this Hon'ble

Court

deem fit under circumstances of

the case

including award of cost of

this petition in the interest of justice and

equity."

Execution No.347/2015 had been filed seeking for the

execution of the judgment and Decree passed in

O.S.No.837/2014.

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3.

O.S.No.837/2014 had been filed by the first Respondent

herein against the second Respondent herein seeking for a

direction to the second Respondent herein, who was the

Defendant therein to vacate and hand over the vacant

possession of the plaint schedule property to the Plaintiff.

4.

The Petitioner is the wife of the 2^nd Respondent herein, the

2^nd Respondent was the Defendant in the Suit as also

Judgement Debtor in the execution Petition and 1^st

Respondent herein was the Plaintiff in the Suit and Decree

holder in the Execution Petition. Petitioner was not a party

to the Suit but filed an application under Order 21 Rule 97

in the execution proceedings.

5.

The parties are referred to by their rank in the trial court.

6.

The case of Plaintiff therein is that Defendant is her

brother. The suit schedule property has been allotted to

the share of Plaintiff’s father V.Gosappa and mother

Smt.A.L.Saraswathy as per Registered Partition deed

dated 08.04.1999. The parents of the Plaintiff therein had

4

given the suit schedule property along with the said land

to the Plaintiff under a registered Settlement Deed dated

26.06.2009 by virtue of which the Plaintiff became the

absolute owner of the suit schedule property and has been

paying the taxes etc.

7.

It is alleged that Defendant, who is none other than her

brother, has been allowed to occupy the premises

gratuitously on a temporary basis. Despite the lapse of

time, Defendant did not vacate the premises, and as such,

a legal notice came to be issued. Despite the legal notice,

Defendant therein did not vacate the premises leading up

to the Suit.

8.

In the said Suit, the Defendant, though served, after

service of summons did not appear in the Court and as

such, he was placed ex-parte, and the matter continued

for trial.

9.

After trial, the trial Court considering the evidence on

record,

including

the

documentary

evidence,

more

5

particularly the reply to a notice dated 07.07.2014

produced at Ex.P6, took cognisance of the admission made

in the reply notice that Defendant had accepted the

partition deed and that he was allowed to stay in the

schedule property gratuitously and on that basis, decreed

the Suit directing the Defendant therein to vacate and

handover the plaint schedule property, within three

months from the date of the order.

10.

Plaintiff filed Execution No.347/2015 seeking for executing

the

aforesaid

judgment

and

Decree.

In

the

said

proceedings, an application under Order XXI Rule 97 and

101 read with Section 151 of CPC came to be filed by the

Petitioner herein seeking for withdrawal/suspension of the

order of ejectment, pending disposal of the application. In

the said application petitioner claimed that she was the

wife of Defendant/ Judgement Debtor therein and that the

issue of partition between Plaintiff and Defendant has not

been resolved amicably. Her Husband was mentally unfit

to act or to do any acts, deeds or things since he was a

6

chronic and compulsive addict to liquor and drugs. In the

said application, it is alleged that she came across the

notice on the above matter, delivered at home, when she

challenged her Husband about the same, her Husband

pleaded ignorance and unawareness about the same. It is

only thereafter, that she engaged the services of an

Advocate and filed the aforesaid application. In the

affidavit in support of the said application, it was alleged

that the prop