Madras High Court

Vijayalakshmi vs Savithiriammal on 22 January, 2021

                                                                            C.R.P.(PD)No.2158 of 2015

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 22.01.2021

                                                          CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                                C.R.P.(PD) No.2158 of 2015
                                                   and M.P.No.1 of 2015

                     Vijayalakshmi                                               ... Petitioner

                                                            Vs.
                     1. Savithiriammal
                     2. Ragothkumar
                     3. Brinda Ramamurthy                                        ... Respondents

                     Prayer :- Civil Revision Petition is filed under Article 227 of the
                     Constitution of India to set aside the fair and decreetal order dated
                     03.03.2015 passed in I.A.No.647 of 2014 in O.S.No.224 of 2014 on the file
                     of the Additional District Munsif, Chidambaram.


                                           For Petitioner  : Mr.A.Muthukumar
                                           For Respondents : No appearance
                                                         ORDER

This Civil Revision Petition is directed as against the fair and

decretal order dated 03.03.2015 passed by the learned Additional District

Munsif, Chidambaram, in I.A.No.647 of 2014 in O.S.No.224 of 2014,

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

thereby allowing the petition for appointment of Advocate Commissioner.

2. The petitioner is the defendant in the suit filed by the

respondents herein for declaration declaring that the delivery effected in

E.P.No.292 of 1985 in O.S.No.618 of 1971 dated 01.11.2014 in favour of

the petitioner herein as null and void. The respondents also sought for

consequential injunction in respect of the suit schedule property. While

pending the suit, the respondents filed petition for appointment of Advocate

Commissioner to note down the physical feature of the suit property and the

same was allowed by the trial Court. Aggrieved by the same the present

Civil Revision Petition has been filed.

3. The learned counsel appearing for the petitioner would submit

that the petitioner has already filed a suit for declaration and recovery of

possession in O.S.No.618 of 1971 as against the husband of the first

respondent herein. The said suit was decreed in her favour. The appeal went

up to this Court and confirmed the judgment and decree passed in

O.S.No.618 of 1971. Thereafter, the petitioner filed execution petition in

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

E.P.No.292 of 1985 for executing the decree. While being so, the husband

of the first respondent herein filed E.A.No.1462 of 1985 under Section 47

of C.P.C., in E.P.No.292 of 1985 in O.S.No.618 of 1971. Unfortunately the

same was allowed on the ground that the petitioner has no locustandi to

execute the decree. However, it was reversed by this Court in C.R.P.No.965

of 1989 by an order 04.11.1996 and the execution petition was restored.

Thereafter, the delivery was ordered on 29.10.2014 and pursuant to which

the possession was also delivered and same was recorded by an order dated

01.11.2014.

3.1. He further submitted that while pending the execution petition,

the defendant viz., the husband of the first respondent died. Thereafter, the

respondents were brought on record in the execution petition. While being

so, again the respondents filed this present suit for declaration with the

above prayer. The suit itself is not maintainable and liable to be struck of.

He also pointed out that under Section 47 of C.P.C., when the questions

arising between the parties in respect of the decree, it shall be determined by

the Execution Court and not by way of separate suit. In fact, the judgment

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

debtor/defendant in the original suit viz., the husband of the first defendant

filed petition under Section 47 of C.P.C and the same went up to this Court

and ordered in favour of the petitioner herein. Only thereafter delivery

effected and the delivery of possession taken over by the petitioner herein.

Therefore, the suit itself is not maintainable and the trial Court ought not to

have taken on file. In the earlier suit, the petitioner also filed petition for

appointment of Advocate Commissioner and the trial Court without

considering the above facts mechanically, allowed the petition for

appointment of Advocate Commissioner to note down the physical feature

of the suit property. Therefore, he prayed to set aside the impugned order by

allowing the present Civil Revision Petition.

4. Heard, Mr.A.Muthukumar, learned counsel appearing for the

petitioner. Though notices served to the respondents and their name printed

in the cause list, no one is appeared either by person or through counsel.

5. The respondents filed suit for declaration declaring that the

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

delivery effected in E.P.No.292 of 1985 in O.S.No.618 of 2017 in favour of

the petitioner as null and void and consequential injunction. On perusal of

written statement filed by the petitioner, it revealed the fact that she already

filed suit for declaration and recovery of possession in O.S.No.618 of 1971

before the learned Additional District Munsif, Chidambaram, as against the

husband of the first respondent herein viz., Boovaragamoorthy. The same

was decreed in favour of the petitioner herein. Aggrieved by the same, the

said Boovarangamoorthy preferred an appeal suit in A.S.No.44 of 1973 and

the same was dismissed on 21.04.1975 by the learned Subordinate Judge,

Chidambaram, confirming the judgment passed by the trial Court. Again

aggrieved by the said judgment, he preferred second appeal and the same

was also dismissed by this Court by the judgment and decree dated

06.10.1978 in S.A.No.1866 of 1975.

6. In pursuant to the decree, the petitioner filed execution petition

in E.P.No.292 of 1985. While pending the execution petition, the husband

of the first respondent viz., Boovaragamoorthy filed an application in

E.A.No.1462 of 1985 under Section 47 of C.P.C., on the ground that the

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

petitioner has no locustandi to execute the decree. Though it was allowed by

the execution Court, it was reversed by this Court by an order dated

04.11.1996 in C.R.P.No.965 of 1989. In pursuant to the order passed by this

Court, the execution petition was restored and delivery was ordered by the

Execution Court. Accordingly, the suit property was taken possession by the

petitioner herein on 29.10.2014 and the same was recorded by an order

dated 01.11.2014 in E.P.No.292 of 1982 in O.S.No.618 of 1971.

7. It is also seen that, while pending the execution petition, the

husband of the first respondent died and the respondents were brought on

record in the execution petition. Therefore, they had full knowledge about

the execution proceedings and the earlier suit filed by the petitioner herein

in respect of the very same property. Knowing fully well about the earlier

proceedings, the respondents herein once again filed this present suit with

the above said prayer.

8. As rightly pointed out by the learned counsel appearing for the

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

petitioner, under Section 47 of C.P.C., the suit itself is not maintainable. It

is relevant to extract the Section 47 of C.P.C., as follows:-

"47. Questions to be determined by the Court executing decree? (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. [2]* * * * (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."

Therefore, the questions of arising between the parties to the suit have to be

determined only before the Execution Court and not by a fresh suit.

9. In the case on hand as stated supra, the petitioner has already

filed suit and taken possession in respect of the suit property. Therefore, the

present suit challenging the delivery of possession is not at all maintainable.

Without considering those aspects, the trial Court appointed the Advocate

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.2158 of 2015

Commissioner to inspect the suit property, though the petitioner filed her

detailed written statement as early as on 02.03.2015 itself. Therefore, this

Court finds that the suit itself is not maintainable and liable to be struck of.

10. Accordingly, this Civil Revision Petition is allowed and the

suit in O.S.No.224 of 2014 itself is not maintainable and hereby struck of.