BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.10.2024 CORAM THE HONOURABLE MRS.JUSTICE S.SRIMATHY C.R.P.(MD)No.1819 of 2024 and C.M.P.(MD)No.10251 of 2024

1.V.Eswaran

2.E.Mageshwaran

3.E.Sathees Kumar ... Petitioners Vs.

1.Velmurugan

2.Ratnam

3.V.S.Sandip

4.S.Sevika

5.S.Murugan

6.M.Thangapandian ... Respondents PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., against the order, dated 13.10.2023, passed in E.A.No.1 of 2022 in E.P.No.114 of 2023 in O.S.No.46 of 2015 on the file of the Additional District Sessions Judge, Periyakulam.

For Petitioners : Mr.S.Ramsundarvijayraj For R1 : Mr.P.V.Gurudevaraj For R2 to R6 : No appearance Advocate Commissioner : Mr.S.Mukesh

ORDER

The present civil revision petition is filed by the defendants 6 to 8 in the suit against the order, dated 13.10.2023, passed in E.A.No.1 of 2022 in E.P.No. 114 of 2023 in O.S.No.46 of 2015 on the file of the Additional District Sessions Judge, Periyakulam.

2. The brief facts are that the 1^st respondent herein namely Velmurugan had filed the suit in O.S.No.46 of 2015 for recovery of money. The said Velumurugan had granted loan to one Late.S.V.Swaminathan for which mortgage deed was executed. In order to recover the money along with interest the suit in O.S.No.46 of 2015 was filed against the respondents 2 to 6 herein who is the wife and children of the said Late.S.V.Swaminathan. The suit was decreed. Against which the said Velmurugan had filed E.P.No.114 of 2023.

3. The revision petitioners herein submitted that the mortgaged property is joint family property and partition suit is pending. One Chinnathai had filed a partition suit in O.S.No.71 of 1985 (renumbered as O.S.No.354 of 2021) on the file of Sub Court, Periyakulam against Chinnammal, Ochammal, Chinnasamy, Swaminathan, Chinnamayan, Saraswathi and the same was allowed vide Judgment and Decree dated 24.04.1992 granting 1/7^th share to the plaintiff Chinnathai. The defendant Swaminathan had filed appeal suit in A.S.No.57 of 1993 on the file of Principal District Court, Madurai. The said Chinnathai had filed cross objections in the appeal suit. The Appeal Suit was dismissed, cross appeal was allowed modifying the Trial Court judgement to an extent that the said Chinnathai is entitled to 1/6^th share. Aggrieved over the defendants had filed S.A.No.1773 of 1996 and the same was dismissed as abated. Thereafter I.A.01 of 2021 was also filed for passing final decree and the final decree was also passed against which an appeal is preferred and the same is pending.

4. Hence the revision petitioners V.Eswaran and others had filed E.A.No.1 of 2022 to implead themselves as parties in the E.P.No.114 of 2023 in O.S.No.46 of 2015. The contention of the revision petitioners is that the plaintiff Velmurugan had including the undivided share of their joint family property belonging to the revision petitioners herein and the respondents 2 to 6 herein. The suit was decreed without hearing their contention, hence they prayed to implead themselves in the execution petition. The specific contention of the revision petitioners is that the suit property is still joint property, without dividing the property in metes and bounds in the partition suit, the mortgagor cannot seek any portion of the property.

5. But the said impleading petition was dismissed on the ground that the property mentioned in mortgage suit is different from the property mentioned in partition suit. The property mentioned in mortgage suit is S.No.514/9, in eastern side 8-7/8 cents, on western side house constructed with Door No.38/A. But the property mentioned in partition suit is S.No.514/9 in 0.25 cents, eastern side 8-7/8 cents house constructed with Door No.8,11,19,20. It is seen that the joint family property in S.No.514/9 in 0.25 cents, on the eastern side 8-7/8 cents with Door No. 8,11,19,20 which was prevailing as in the year 1985, since the partition suit was filed on 26.06.1984. Thereafter there was no partition among the family member