Madras High Court
Pazhani vs Manoharan on 21 June, 2021
CRP.NPD.No.2415 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2415 of 2018
and CMP.No.14869 of 2018
1.Pazhani
2.Devendiran
3.Kalaivanan ..Petitioners
Vs.
1.Manoharan
2.The President,
Sethiyathope Town Panchayat,
Sethiyathope,
Cuddalore District
3.The Executive Officer,
Sethiyathope Town Panchayat,
Sethiyathope,
Cuddalore District ..Respondents
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC to
strike of the proceeding in EP.No.207 of 2008 on the file of the
Principal District Munsif Court, Chidambaram.
For Petitioners : Mr.P.R.Thiruneelakandan
For Respondents
For R1 : Mr.A.Muthukumar
For R2 & 3 : Dr.S.Suriya,
Government Advocate(CS)
ORDER
This Civil Revision Petition is filed to strike of the
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CRP.NPD.No.2415 of 2018
proceeding in EP.No.207 of 2008 on the file of the Principal District
Munsif Court, Chidambaram.
2. The petitioners are the defendants 3 to 5 and the first
respondent is the plaintiff. The first respondent filed suit for
declaration and permanent injunction in respect of the suit property.
The said suit was decreed by the judgment and decree dated
29.02.2008. In pursuant to the decree, the first respondent filed
execution petition in EP.No.207 of 2008 for the reason that the
petitioners were disturbing the possession and enjoyment of the suit
property by the first respondent herein and also sought for civil arrest
as against the petitioners herein. After filing numerous petitions, order
of arrest became final and finally, the petitioners filed petition to close
the execution proceedings in EP.No.207 of 2008 and recall the order of
arrest, if any, issued as against the petitioners. The said application
was returned by the court below. At that juncture, the present civil
revision petition has been field to strike of the entire proceedings in
EP.No.207 of 2008.
3. The learned counsel for the petitioners would submit that
the petitioners are the defendants 3 to 5 herein in the suit filed by the
first respondent for declaration and permanent injunction. They were
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CRP.NPD.No.2415 of 2018
set exparte before the trial court and exparte decree was passed. On
the strength of the exparte decree, execution petition was filed and
encroached public street and put up some construction. Therefore, the
other residents of the street filed writ petition before this Court and
the first respondent was directed to remove the construction put up in
the street. In fact, the revenue authorities also found that the first
respondent obtained fraudulent document and subsequently
encroached public property. Therefore, the FMB sketch produced by
the first respondent was also cancelled. At that juncture, the first
respondent insisted the execution court for order of arrest as if the
petitioners are disturbing the possession and enjoyment of the first
respondent in respect of the suit property. Therefore, the entire
execution proceedings is liable to be struck of.
4. Per contra, the learned counsel for the first respondent
submitted that the first respondent filed suit for declaration and
permanent injunction in respect of the suit property and the same was
decreed by the judgment and decree dated 29.02.2008. Thereafter,
the petitioner keep on making disturbance to the possession and
enjoyment of the property. As such the first respondent was
constrained to filed execution petition in EP.No.207 of 2008. In the
meantime, the petitioners set up other persons and filed suit in
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CRP.NPD.No.2415 of 2018
OS.No.180 of 2011 for declaration declaring that the suit property is
public street and also for declaration declaring that the judgment and
decree passed in OS.No.426 of 1999 obtained by fraud by the first
respondent and also for mandatory injunction.
4.1 Thereafter, the petitioners filed EA.No.201 of 2015 for stay
of all execution proceedings till the pendency of the suit in OS.No.180
of 2011 and the same was dismissed. Aggrieved by the same, the
petitioners preferred civil revision petition before this Court in
CRP.No.2091 of 2016 and the same was also dismissed. In fact, before
the execution court, the first respondent examined two witnesses as
PW1 and PW2 and the petitioners also examined RW1 in the execution
proceedings. After due contest, the execution petition was allowed by
order dated 03.08.2016 and ordered arrest against the petitioners
herein. The petitioners filed EA.No.235 of 2016 to set aside the order
of arrest, EA.No.236 of 2016 to recall the order of arrest, EA.No.232 of
2016 to stay of the arrest and EA.No.233 of 2016 to receive additional
documents in execution petitions. All the applications were dismissed
by the Execution Court by order dated 10.04.2017. Aggrieved by the
same, the petitioners also preferred appeal with condone delay
petitions in IA.Nos.109 to 112 of 2018. On 10.04.2017, all the
petitions were dismissed by the appellate court. They did not prefer
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CRP.NPD.No.2415 of 2018
any appeal as against the dismissal of the condone delay petitions.
Thereafter order of arrest became final and the first respondent was
directed to file bata to execute the order of arrest on 04.04.2018. At
that juncture, again the petitioners filed another EA to close the
execution petition and also recall the order of arrest, if any, issued
against the petitioners. Therefore, the Execution Court rightly returned
the same. Thereafter the present civil revision petition is filed.
5. Heard, P.R.Thiruneelakandan, the learned counsel for the
petitioners and Mr.A.Muthukumar, the learned counsel for the first
respondent, Dr.S.Suriya, Government Advocate(CS) appearing for the
respondents 2 and 3.
6. The petitioners are the defendants 3 to 5 herein in the suit
filed by the first respondent for declaration and permanent injunction
in respect of the suit property. The suit was decreed. In pursuant to
the said decree, the first respondent filed execution petition for arrest.
While pending the execution petition, five persons located in the same
locality filed another suit in OS.No.180 of 2011 declaring that the
portion of the suit property in the present suit is road and also
declaring that the decree obtained by the first respondent in
OS.No.426 of 1998 by fraud with mandatory injunction to remove the
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CRP.NPD.No.2415 of 2018
encroachment made in the suit property. In pursuant to the said suit,
the petitioners filed EA.No.201 of 2015 to stay all further proceedings
in the execution petition till the disposal of the suit in OS.No.180 of
2011 on the file of the Principal District Munsif Court, Chidambaram
and the same was dismissed by order dated 14.08.2015. Aggrieved by
the same, the petitioners filed civil revision petition before this Court in
2091 of 2016 and the same was also dismissed by this Court by order
dated 22.07.2016. In fact, before the execution court, the first
respondent examined two witnesses as PW1 and PW2 and the
petitioners also examined RW1 in the execution proceedings. After due
contest, the execution petition was allowed by order dated 03.08.2016
and ordered arrest against the petitioners herein.
7. The petitioners filed EA.No.235 of 2016 to set aside the
order of arrest, EA.No.236 of 2016 to recall the order of arrest,
EA.No.232 of 2016 to stay of the arrest and EA.No.233 of 2016 to
receive additional documents in execution petitions. All the
applications were dismissed by the Execution Court by order dated
10.04.2017. Aggrieved by the same, the petitioners also preferred
appeal with condone delay petitions in IA.Nos.109 to 112 of 2018. On
10.04.2017, all the petitions were dismissed by the appellate court. At
that juncture, the petitioners once again filed EA to recall the order of
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CRP.NPD.No.2415 of 2018
arrest and close the EP in EP.No.207 of 2008 and the same was
returned by the court below. While being so, the present civil revision
petition has been filed to strike of the proceedings in EP.No.207 of
2008 on the file of the Principal District Munsif Court, Chidambaram.
8. The present civil revision petition has been filed
suppressing the above all facts and orders. Therefore, this Court finds
no merits in the present civil revision petition and it is liable to the
dismissed. Accordingly, this civil revision petition is dismissed.
Consequently, connected miscellaneous petition is closed. No order as
to costs.
21.06.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.NPD.No.2415 of 2018
G.K.ILANTHIRAIYAN,J.
lok
To
The Principal District Munsif Court,
Chidambaram
CRP.NPD.No.2415 of 2018
21.06.2021
https://www.mhc.tn.gov.in/judis/
