Meyyanathan vs Balakrishnan (Died)
2021 Latest Caselaw 1223 Mad

                                                               C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED :20.01.2021

                                                    CORAM

                            THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                   C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)
                                           and M.P(MD).No.1 of 2014


                     Meyyanathan                   ..Petitioner/Petitioner
                                                          /Respondent//1st Defendant

vs.

1.Balakrishnan (died) ...Respondent/Respondent/Petitioner /Plaintiff

2.Karuppiah Konar

3.Rajakumari ....Respondents/Respondents Respondents/Defendants 2 & 3

4.Kamala

5.Sumathi

6.Sasikala

7.Balaji

8.Baskaran

9.Parthasarathi

10.Rengabashyam

11.Seenivasan ..../Proposed Respondents 4 to 11 /Respondents 4 to 11

(Respondents 4 to 11 are brought on record as LRs of the deceased first respondent Vide Court order dated 05.01.2021 made in CMP(MD).Nos. 8935 to 8937 & 8938 to 8940 of 2016 in CRP(MD).Nos.1302 & 1303 of 2014)

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

Common Prayer: These Civil Revision Petitions have been filed under Section 115 of Code of Civil Procedure, against the fair and decreetal order dated 15.03.2014 passed in E.A.Nos.30 and 41 of 2013 in E.P.No.116 of 2001 in O.S.No.247 of 1982 on the file of the District Munsif Court, Aranthangi.

                                        For Petitioner      : Mr.P.Thirumahilmaran
                                        For R7           : Mr.K.Balasundaram

                                            COMMON              ORDER

These two Civil Revision Petitions arise in Execution

Proceedings. The suit in O.S.No.247 of 1982 was filed by the first

respondent seeking declaration of title of the plaintiff and recovery of

possession of an extent of 33 cents of land in Survey No.185/2A out of

total extent of 2.52 acres situated within definite four boundaries. The suit

was decreed by the trial Court and the said decree was affirmed in an

appeal in A.S.No.57 of 2001. The Second Appeal against the said

Judgement and Decree in S.A.No.1575 of 2003 was dismissed by this

Court on 07.12.2012. This Court while dismissing the second appeal had

also concluded that the description of the property which has been found in

the plaint is correct and the request by the defendant to carry out an

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

exercise of proper identification of the property and the appointment of the

Advocate Commissioner was also rejected. When this decree was sought to

be put in execution in E.P.No.116 of 2001, the petitioner herein who lost

the suit upto this Court filed two applications one under Section 47 of

Code of Civil Procedure seeking an order of demarcation of the property of

the plaintiff and himself by appointment of Advocate Commissioner with

the help of Taluk Surveyor. Another application was also filed in E.A.No.

30 of 2013 seeking appointment of Advocate Commissioner.

2.Both these applications were resisted on the ground that the suit is

one for declaration of title and recovery of possession. An Advocate

Commissioner having been appointed in the suit itself there is no question

of demarcation of the property that too in execution by way of application

under Section 47 C.P.C. The Executing Court dismissed the applications on

the ground that the application is beyond the scope of Section 47 C.P.C.

The Executing Court also referred to the Judgement of this Court in

2006(3) C.T.C Page 67, wherein, this Court had laid down parameters of

the jurisdiction of the Executing Court under Section 47 C.P.C. The

Hon'ble Supreme Court has also held that the jurisdiction of the Executing

Court to impede execution of the decree under Section 47 C.P.C lies

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

within the microscopic hole and the Executing Court cannot go behind the

Decree. On the above conclusion, the Executing Court dismissed the

applications. Aggrieved, the present revisions have been filed by the

petitioner/Judgment Debtor.

3.Pending these revisions, this Court by order dated 03.11.2020

appointed the Advocate Commissioner to visit the suit property to note

down the physical features and file report. Pursuant to the said order, the

Advocate Commissioner has filed a report demarcating the property which

is the subject matter of the suit. In the report, she has observed that 33

cents of land claimed in the suit by the plaintiff lies on the Southern

portion of the Survey No.185/2A. A plan has also been filed. It shows the

exact location of the suit property.

4.The learned counsel appearing for the petitioner would contend

that the Advocate Commissioner has not measured the entire property and

therefore, the property identified by the Commissioner as the suit is

incorrect.

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

5.I am prima facie of the view that all these questions cannot be

gone into in an application under Section 47 C.P.C. It is the duty of the

Executing Court to execute the decree as it stands. The plan shows the

description of the property and four boundaries are available. A

commissioner was appointed in the suit and he has filed the report and

plan. Another Commissioner was appointed by this Court in these revisions

and she has also filed the report and plan.

6.It is the grievance of the petitioner that this 33 cents of land which

has been identified by the Advocate Commissioner includes a certain

portion of the property purchased by him. This question particularly cannot

be decided in execution. The very same contention has been raised in the

suit and negatived. Therefore, the Executing Court cannot reopen the

Judgment and Decree and examine the issue relating to identity afresh.

7.I am therefore of the considered opinion that the order of the trial

Court dismissing the applications cannot be faulted. I do not find any

illegality or material irregularity in the order of the trial Court in

dismissing the applications. These Civil Revision Petitions therefore fail

and the same are, accordingly, dismissed. No costs. Consequently,

connected miscellaneous petitions are closed.

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

8.Registry shall forward the copy of the Commissioner Report that

has been filed in this Court to the Executing Court and the Executing Court

shall proceed with execution in accordance with law.

20.01.2021

Index : Yes/No Internet: Yes/No msa

http://www.judis.nic.in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD)

R.SUBRAMANIAN,J.

msa

Order made in C.R.P.(MD)Nos.1302 & 1303 of 2014(NPD) and M.P(MD).No.1 of 2014

20.01.2021

http://www.judis.nic.in