Advocates:
['M/S H LAKSHMI SHANKAR', 'M/s K Periasamy', '', 'FOR CAVEATOR']

CRP(MD)No.1693 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 24.08.2022

CORAM:

THE HONOURABLE MR.JUSTICE B.PUGALENDHI

CRP(MD)No.1693 of 2022

Senthamarai

: Petitioner

Vs.

1.Vijayalakshmi

2.Pandidurai

3.Annadurai

4.Ingar

: Respondents

PRAYER: Civil Revision Petition filed Section 115 of the Code of Civil

Procedure to call for the records pertaining to the fair and decreetal order dated

07.06.2022 passed by the learned Additional District and Sessions Judge, Palani,

in I.A.No.46 of 2021 in O.S.No.25 of 2015 and set aside the same.

For Petitioner

: Mr.H.Lakshmi Shankar

For Respondents : Mr.K.Periasamy

*****

ORDER

This revision petition is filed as against the order passed by the learned

Additional District and Sessions Judge, Palani, in I.A.No.46 of 2021 in O.S.No.25

of 2015, dated 07.06.2022.

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2.The petitioner is the plaintiff in the suit in O.S.No.25 of 2015. He filed the

suit for partition and the same was decreed by the learned Additional District and

Sessions Judge, Palani, by order dated 11.01.2021. The petitioner has also filed an

application for passing of final decree and the same was pending before the trial

Court. In the meantime, the respondents / defendants filed an appeal before this

Court in A.S.(MD)No.76 of 2021, wherein, a Division Bench of this Court has

passed an order of interim stay for passing of final decree. While so, the

petitioner / plaintiff has filed an interlocutory application in I.A.No.46 of 2021

before the trial Court for appointing an Advocate Commissioner to survey the

property and to suggest the mode of partition among the parties. The trial Court

dismissed the said application, holding that the appeal in A.S.(MD)No.76 of 2021

is pending and in view of the interim order of stay granted therein, appointing an

Advocate Commissioner amounts to wastage of time and money. Aggrieved over

the same, the petitioner has moved the instant revision.

3.Heard the learned Counsel appearing for the petitioner and the learned

Counsel appearing for the respondents.

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4.Learned Counsel for the petitioner, by relying upon the decision of the

Hon'ble Supreme Court in the case of Kattukandi Edathil Krishnan and Others v.

Kattukandi Edathil Valsan and Others, reported in AIR 2022 SC 2841, submitted

that once a preliminary decree has been passed, the Court has to pass the final

decree on its own without waiting for the decree holder to initiate a separate

proceedings for that purpose. He further submitted that in this case, preliminary

decree was passed in his favour, which was challenged in the appeal before this

Court. While entertaining the appeal, the Division Bench of this Court has passed

an interim order staying the passing of final decree alone. All other proceedings

can very well be carried out, except the passing of final decree. Therefore, he has

filed the interlocutory application for appointment of Advocate Commissioner to

survey the property and to suggest the mode of partition among the parties. If the

said process is completed, the report of the Advocate Commissioner would be very

much useful at the time of passing the final decree. However, the trial Court has

erroneously dismissed the interlocutory application in view of the interim order

passed by the Division Bench of this Court.

5.As per the latest decision of the Hon'ble Supreme Court in Kattukandi

Edathil Krishnan's case (supra), the trial Court, soon after the passing of the

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preliminary decree for partition and separate possession of the property, has to

take steps under Order XX Rule 18 CPC suo motu, without requiring the initiation

of any separate proceedings. In this case, the petitioner, after the passage of

preliminary decree, has himself filed an interlocutory application for final decree

and for appointing an Advocate Commissioner for the purpose of survey and for

suggesti