In a second appeal against a recovery of possession decree, the court held that allowing execution would render the appeal infructuous. The petition was allowed, the interim order made absolute, and the main appeal posted for hearing.
The CMP(MD) petition was allowed; the interim order dated 29.01.2021 was made absolute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CMP(MD) No.368 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
( Civil Appellate Jurisdiction )
Monday, the First day of March Two Thousand and Twenty One
PRESENT
The Hon`ble Mr.Justice R.SUBRAMANIAN
CMP(MD) No.368 of 2021
in SA(MD)No.24 of 2021
BASHEER AHAMED ... PETITIONER/APPELLANT
Vs
1 MELA MADAM
THROUGH ITS MADATHIPATHI
VIDHESWARA SIVACHARIYAR @ NATARAJAN
2 PREMAVATHI @ PREMA
3 MINOR MUTHUSAMY
4 M.R.ANBURAJA ... RESPONDENTS/RESPONDENTS
(Minor 3rd Respondent through his mother and guardian Premavathi @ Prema, 2nd Respondent herein)
Petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the High Court may be pleased to stay the operation of the judgment and decree passed in O.S No.10 of 2002 dated 27.01.2017 on the file of the II Additional District Munsif Court, Tirunelveli which is confirmed in A.S No.11 of 2009 dated 06.08.2020 on the file of the Principal Sub Court, Tirunelveli pending disposal of the Second Appeal.
PRAYER IN SA(MD)No.24 of 2021:
Pleased to set aside the judgment and decree passed in A.S No.11 of 2009 dated 06.08.2020 on the file of the Principal Sub Court, Tirunelveli confirming the judgment and decree passed in O.S No.10 of 2002 dated 27.01.2017 on the file of the II Additional District Munsif Court, Tirunelveli.
ORDER : This petition coming up for orders on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr.H.ARUMUGAM, Advocate for the petitioner and of Mr.Kumar, Advocate on behalf of the 1st Respondent, https://hcservices.ecourts.gov.in/hcservices/
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CMP(MD) No.368 of 2021
the court made the following order:-
The decree under challenge is one for recovery of possession. If the same is allowed to be put in execution pending appeal, the appeal itself would become infructuous. Hence, C.M.P.(MD)No.368 of 2021 is allowed and interim order granted on 29.01.2021 is made absolute.
2.Post the main appeal on 15.03.2021.
sd/01/03/2021 / TRUE COPY / / /2021 Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO
1.THE II ADDITIONAL DIST MUNSIF, TIRUNELVELI.
2.THE PRINCIPAL SUBORDINATE JUDGE, TIRUNELVELI. +1. C.C. to Mr.H.ARUMUGAM Advocate SR.No.1667
ORDER IN CMP(MD) No.368 of 2021 in SA(MD)No.24 of 2021 Date :01/03/2021 CMR TK/PN/SAR.1/04.03.2021/2P/4C
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1 issue framed by the court
Whether the execution of a possession decree should be stayed pending the disposal of the second appeal.
BASHEER AHAMED
MELA MADAM THROUGH ITS MADATHIPATHI VIDHESWARA SIVACHARIYAR @ NATARAJAN
PREMAVATHI @ PREMA
MINOR MUTHUSAMY
M.R.ANBURAJA
R.SUBRAMANIAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
