S.A.(MD).No.75 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 21.06.2023

CORAM

THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

S.A.(MD).No.75 of 2017

and

C.M.P.(MD).No.1425 of 2017

Cicily

... Appellant/1^st respondent/1^st respondent/

1^st Plaintiff and LR of Plaintiff No.2/

Decree Holder

Ronickam (Died)

...2^nd Plaintiff

Vs.

1.Mariadhas

...1^st Respondent/Appellant/Petitioner/

Claimant/Obstructer/3^rd Party

2.Lazar

...2^nd Respondent/2^nd Respondent/3^rd Respondent

/Judgment Debtor/1^st Defendant

3.Balakrishkrishnan

...3^rd Respondent/3^rd Respondent/4^th Respondent/

/Judgment Debtor/2^nd Defendant

4.Masillamony

....4^th Respondent/4^th Respondent/6^th Respondent

/Judgment Debtor/4^th Defendant

Yesuvadian (Died)

...5^th Defendant

Therasammal (Died)

...LR of 5^th Defendant

5.Margret Marry

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S.A.(MD).No.75 of 2017

6.Elsi

7.George

8.Victorial

9.Alphonsal

10.Pushpam

...5 to 10 Respondents/6 to 11 Respondents/

9 to 14 Respondents/LR of

deceased 5^th Defendant

Chellammal (Died)

...LR of 3^rd Defendant

Prayer: Second Appeal is filed under Section 100 of CPC to set aside the

judgment and decree dated 25.07.2016 passed in A.S.No.144 of 2015 on the file

of the Sub Court, Kuzhithurai, Kanyakumari District, reversing the judgment

(Fair order) and Decree dated 02.11.2015 passed in E.A.No.217 of 2008 in

E.P.No.46 of 2008 in O.S.No.23 of 1992 on the file of the Principal District

Munsif Court, Kuzhithurai, Kanyakumari District by allowing this Second

Appeal.

For Appellant

: Mr.V.Meenakshisundaram

For Respondents : Mr.S.Meenakshi Sundaram

Senior Counsel

for M/s.N.GA.Nataraj for R-1

R-2 to R-10 - Given up

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S.A.(MD).No.75 of 2017

JUDGMENT

This Second Appeal has been filed challenging the judgment and decree

of the Lower Appellate Court, namely, the Sub Court, Kuzhithurai dated

25.07.2016 in I.A.No.96 of 2016 and A.S.No.144 of 2015.

2. The appellant is the first respondent in A.S.No.144 of 2015 on the file

of the Sub Court, Kuzhithurai. The appellant is having the benefit of a

judgment and decree dated 07.11.2003 passed in I.A.No.164 of 1997 in

O.S.No.23 of 1992 on the file of the Sub Court, Kuzhithurai. It was a final

decree passed in favour of the appellant in a partition suit, namely, O.S.No.23

of 1992. The appellant filed an execution petition before the Principal District

Munsif Court, Kuzhithurai in E.P.No.46 of 2008 to execute the aforesaid final

decree passed in the partition suit.

3. However, the first respondent claims that he is in lawful possession of

the property and that the appellant, who had obtained a fraudulent decree for

partition behind his back, is not entitled for recovery of possession and on the

said ground, he had filed an obstruction petition under Order 21 Rule 97 CPC

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S.A.(MD).No.75 of 2017

before the Executing Court in E.P.No.46 of 2008. The obstruction petition filed

by the first respondent was numbered as E.A.No.217 of 2008. A counter was

also filed by the appellant, who is the decree holder, in the said execution

application. The Executing Court, namely, the Principal District Munsif Court,

Kuzhithurai by its order dated 02.11.2015 in E.A.No.217 of 2008 in E.P.No.46

of 2008 in O.S.No.23 of 1992 dismissed the obstruction petition filed by the

first respondent.

4. Aggrieved by the same, the first respondent filed a first appeal before

the Sub Court, Kuzhithurai in A.S.No.144 of 2015. In the said first appeal, the

first respondent also filed an application in I.A.No.96 of 2016 under Order 41

Rule 27 CPC for the reception of additional documents, namely, a) Advocate

Commissioner's report, b) judgment and decree passed in O.S.No.6 of 1983 on

the file of the Additional District Munsif Court, Kuzhithurai. A counter

affidavit has also been filed by the appellant denying the contentions o