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Judgment
K. Ravichandrabaabu, J.—This Civil Revision Petition is filed challenging the order of the Court below dated 28.11.2011 in dismissing the
application filed to receive additional counter statement in the execution proceedings. Heard the learned counsel appearing for either side.
The petitioner is the defendant in O.S. No. 214 of 1998 filed for partition. The respondents are the plaintiffs in such suit. A preliminary decree
came to be passed by the trial Court on 26.07.2001 thereby granting 8/9th share to the plaintiffs. However, the trial Court refused to grant the
balance 1/9th share in favour of the defendant on the ground that no Court fee has been paid by him for such partition. The aggrieved defendant
filed first appeal in A.S. No. 175 of 2001 on the file of I Additional District Court, Coimbatore. The first appellate Court, by its judgment and
decree dated 16.04.2003 allowed the appeal in part by modifying the judgment and decree of the trial Court by holding that the
appellant/petitioner herein is entitled to 1/9th share of the suit property. Thereafter, a final decree came to be passed by the trial Court on
22.07.2005. Consequent upon passing of the said final decree, the plaintiffs filed execution petition in E.P. No. 127 of 2007. The petitioner herein
filed E.A. No. 363 of 2009 u/s 47 CPC by contending that decree is non-executable as he is entitled to the benefit of Tamil Nadu Buildings and
Lease Control Act, 1960, apart from the fact that the superstructure standing in the suit property cannot be divided. The said application came to
be rejected by the executing Court. Challenging the said order, the petitioner preferred C.R.P. No. 2788 of 2011 before this Court. By an order
dated 17.08.2011, the said petition was dismissed. Thereafter, the petitioner filed the present application in E.A. No. 488 of 2011 to receive
additional counter by contending that there is no enabling decree for delivering possession. The said application was rejected by the Court below
holding that in a suit for partition, there is no necessity to pray for a decree for delivering possession and that after passing the final decree by
allotting the shares to the respective parties, the parties concerned have to apply for execution of the decree and the executing Court alone has to
pass an order for delivery of possession on the basis of final decree. It is also found by the Court below that the present application has been filed
by the petitioner only with an intention to stop the execution petition from reaching its finality with a view to prevent the decree holders by enjoying
the fruits thereof. Challenging the said order, the present petition is filed.
Going by the above said facts and circumstances of the case as well as the pleadings of the parties and the orders passed by the Court below,
this Court finds that there is absolutely no merits in this petition. As rightly observed by the Court below, when a suit for partition is filed seeking for
partition of a particular share and allotment of the same, then it goes without saying that delivery of such possession of such share to the parties in
pursuant to the preliminary decree followed by final decree is an academic process. Therefore, the petitioner''s contention is totally unsustainable in
this aspect. Moreover, the petitioner has also made an attempt to file an application u/s 47 of CPC to reject the execution petition by raising similar
grounds. The Court below has rejected the said application which was confirmed by this Court in C.R.P. No. 2788 of 2011 by order dated
17.08.2011. Therefore, the petitioner is not entitled to file any additional counter and the order of rejection passed by the Court below is perfectly
in order and does not warrant any interference by this Court. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the
connected miscellaneous petition is closed.