CRP/792/2025 of ASHOKAN Vs THILAGARANI on 30 September 2026

ORDER

The defendants 3 to 5 in O.S.No.83 of 1995 are the revision petitioners, challenging the order passed in E.P.No.45 of 2022.

2. I have heard Mr.B.Jawahar, learned counsel for the revision petitioners and Mr.P.Dinesh Kumar, learned counsel for the 1st respondent and Mr.G.Jeremiah, learned counsel for the 3rd respondent.

3. Mr.B.Jawahar, learned counsel for the revision petitioners would contend that the suit was initially filed for partition in respect of several items of properties and all the parties were entitled to a 1/6 share. A preliminary decree was originally passed on 13.01.2000, declaring the 1/6 share of the 1st respondent/plaintiff. Though a final decree application was filed, simultaneously the plaintiff also filed A.S.No.20 of 2005 before this Court, challenging the disallowed portions of the preliminary decree. The said A.S.No.20 of 2005 was pending and the Trial Court in the interregnum period, passed a final decree on 10.03.2008, based on which, the execution petition came to be filed. The learned counsel for the petitioners therefore states that the

Trial Court should have awaited the decision in the appeal suit and the final decree passed on 10.03.2008 is unsustainable, especially when the plaintiff himself has challenged the preliminary decree by way of first appeal before this Court.

4. The learned counsel for the petitioners would also bring to my notice that the preliminary decree was admittedly modified in A.S.No.20 of 2005 and in such circumstances, the plaintiff ought to have been called upon to file a fresh final decree application, based on the decree passed by this Court in A.S.No.20 of 2005. He would also state that the Trial Court clearly fell in error in putting the first preliminary decree dated 13.01.2000 to execution and allowing the same. He would therefore pray for the revision petition being allowed.

5. Per contra, Mr.P.Dinesh Kumar, learned counsel for the 1st respondent and Mr.G.Jeremiah, learned counsel for the 3rd respondent would contend that there is no infirmity in the order passed by the Executing Court, since the appeal filed before this Court in A.S.No.20 of 2005 was only in respect of the disallowed share in some of the items of suit properties and therefore, the Trial Court did not commit any error in passing the final decree. The learned counsel would also contend that the final decree has not been challenged and the same has become final. It is their further contention that the modifications to the preliminary decree by this Court in A.S.No.20 of 2005 will have no bearing on the execution proceedings, since it relates to other items of the properties alone and therefore, no prejudice has been caused to the revision petitioners and it is always open to the revision petitioners to stake a claim insofar as their entitlement in the suit properties, without in any manner seeking to set aside or modify the final decree that has already been passed. They therefore seek for dismissal of the revision petition.

6. I have carefully considered the arguments advanced by the learned counsel on either side.

7. In fact, pending the revision, I have even adjourned the matter for enabling the parties to reach an amicable settlement, considering that they are closely related and there are several items of the properties and in order to explore whether the parties can agree upon some mutual and amicable terms of settlement. However, it is reported today that the parties have not been able to reach any settlement and hence, based on the arguments advanced, I am proceeding to decide the revision petition.

8. The main ground of attack of the learned counsel for the revision petitioners to the order passed in the execution petition is that the Executing Court ought not to have entertained the execution petition, based on the preliminary decree that was originally passed without reference to the modifications that were effected in A.S.No.20 of 2005 by this Court in appellate jurisdiction. However, as rightly contended by the learned counsel for the respondents and also factored by the Executing Court, the result of the appeal suit does not have any material bearing on the final decree that has already been passed, pursuant to the preliminary decree passed on 13.01.2000. Further, the final decree has also not been challenged till date and it is only the order of delivery passed by the Executing Court, pursuant to the final decree that has been challenged.

9. No doubt, the arguments of the learned counsel for the petitioners may have some force in equity, however, when the final decree has become final and the Executing Court has only proceeded to give effect to the final decree, I do not see any error having been committed by the Executing Court, in ordering the execution petition to give effect to the final decree. Merely because the petitioners are aggrieved and they may stand to lose possession of the property in their occupation, it cannot afford a ground to the petitioners to challenge the order of delivery passed by the Executing Court. The petitioners are also entitled to a share in the suit properties and it is open to the petitioners to workout their rights independently to take possession of their entitlement, in terms of the final decree passed. It is needless to state that in the event of there being no preliminary decree passed in favour of the petitioners, then the petitioners shall seek for passing of a preliminary decree upfront, and thereafter, for passing of a final decree, in terms of the said preliminary decree in their favour. However, insofar as the present revision petition is concerned, I do not see any grounds warranting interference with the well considered order of the Executing Court. There is no merit in the revision petition.

10. In fine, the Civil Revision Petition is dismissed. No costs. Connected Civil Miscellaneous Petition is closed. 30-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No ATA To The Sub Court, Sirkali.

P.B.BALAJI, J. ATA CRP No. 792 of 2025 30-09-2026