Disposed

Tirumalasetty Devi Kanth v. Tirumalasetty Krishna Priya

Andhra Pradesh HC19 Sept 2023CRP/2257/2023

Case brief

AI extract

What is this about?

This court disposed of a civil revision petition challenging an order appointing an advocate commissioner for dividing properties under a partition preliminary decree. The revision petitioner raised issues regarding a plea of relinquishment not taken earlier, but the court dismissed the petition on grounds of maintainability since final decree proceedings were pending where such pleas could be rai

What did the court decide?

The revision petition is disposed of; no order as to costs; pending miscellaneous applications to stand closed.

Tirumalasetty Devi Kanth Vs Tirumalasetty Krishna Priya — Partition | Andhra Pradesh HC (2023)

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THE HON’BLE MS JUSTICE B.S.BHANUMATHI

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Civil Revision Petition No.2257 of 2023

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ORDER :

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This Revision Petition is filed under Article 227 of the Constitution of India against the order dated 19.07.2023 in I.A.No.357 of 2022 in O.S.No.118 of 2012 on the file of the Senior Civil Judge, Chirala, Bapatla District, which is filed by the plaintiff/petitioner under Order 34, Rules 4 to 13 of Code of Civil Procedure to appoint an advocate commissioner for division of plaint schedule properties as per the preliminary decree.

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The revision petitioner is the defendant No.2, 1^st respondent is the plaintiff, 2^nd respondent is the defendant No.1, 3^rd respondent is the defendant No.3, 4^th respondent is the defendant No.4, whereas, 5^th respondent is the defendant No.5 in O.S.No.118 of 2022.

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The 1^st respondent herein/plaintiff filed suit for partition and obtained preliminary decree in her favour granting 1/3^rd share in the plaint ‘A’ and ‘B’ schedule properties. The suit in respect of the plaint ‘C’ schedule property was dismissed. Though, the 2^nd defendant filed a written statement pleading among other contentions, that the plaintiff executed an unregistered relinquishment dated 18.04.2011 and that the

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defendant No.1 is sailing with the plaintiff, defendant No.2 did not enter into witness box, nor did he file any documents in evidence. After passing the preliminary decree, since the decree was not complied, the plaintiff filed I.A.No.357 of 2022.

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This petition was opposed by the defendant No.2 only by filing counter taking the same pleadings as in the written statement, where as the other respondent Nos.3 to 5 remained ex-parte. After hearing the petitioner/plaintiff and the 2^nd respondent/defendant No.2, the trial Court allowed the petition in I.A.No.357 of 2022 and appointed an advocate commissioner.

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Against the said order, this revision petition was filed contending that no proper reasons were shown by the trial Court to allow I.A.No.357 of 2022 and that the plaintiff has no right to ask for partition having voluntarily relinquished her right in joint family properties through the unregistered relinquishment deed dated 18.04.2011, executed much prior to filing of the suit and that the trial Court ought to have considered the relinquishment deed and that the defendant No.1 is sailing with the plaintiff and collusively obtained a decree. The revision petitioner further stated that due to illhealth he could not follow the proceedings.

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The learned counsel for the petitioner submitted as in the grounds of revision and the contents in the counter/written statement.

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The preliminary decree is challenged in the appeal. The petitioner seeks to take in the final decree proceedings the same defense as in the written statement. In the final decree proceedings, the petitioner cannot again take the pleas, which he has or ought to have taken in the suit before passing the preliminary decree. The petitioner ought to have taken proper steps, if aggrieved by the preliminary decree. Therefore, the revision petition is not maintainable. 7. At this juncture, the learned counsel for the petitioner seeks liberty to take proper steps to place on record the evidence in support of the defense and challenge the preliminary decree. If law provides any remedy, it is always open for any party to seek remedy as per law.

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Accordingly, the revision petition is disposed of.

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There shall be no order as to costs.

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Pending miscellaneous applications, if any, shall stand

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closed.

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___________________ B.S.BHANUMATHI, J

19.09.2023 NSM

205

THE HON’BLE Ms. JUSTICE B S BHANUMATHI

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CRP.No. 2257 of 2023

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19.09.2023

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NSM

Tirumalasetty Devi Kanth v. Tirumalasetty Krishna Priya

Case brief

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What did the court decide?

Tirumalasetty Devi Kanth v. Tirumalasetty Krishna Priya

Case brief

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