Madras High Court
Sakunthala(Died) vs Mohanaammal on 5 March, 2021
CRP.NPD.No.3645 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3645 of 2016
and
CMP.No.18561 of 2016
1.Sakunthala(died)
2.Sathyavathi
3.Sai Lakshmi
4.Neelavathi
5.Dhanalakshmi
6.G.Manoharan
7.Prema
8.M.Ramani
9.D.Shanthi
10.Uma Maheswari
(petitioners 6 to 10 brought on record as LR's
of the deceased first petitioner viz
Sakunthala vide court order dated 23.2.21
made in CMP.Nos.3038,3039 & 3043 of
2021 in CRP.No.3645 of 2016 ..Petitioners
Vs.
1.Mohanaammal
2.Nagarajan
3.Devi
4.T.Selvarani
5.K.S.Chandrasekaran
6.K.S.Easu Devendran
7.S.Nagavalli
8.K.P.Kothandan
9.Manimala
10.Madhubala ..Respondents
1/6
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3645 of 2016
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
against the petition order dated 24.10.2016 in unnumbered
EA.Sr.No.1363 of 2014 in EP.No.20 of 2011 in OS.No.487 of 1981 on
the file of the District Munsif at Thiruvallur.
(EA.Sr.No.1363 of 2014 Grounds amended vide order of court dated
18.11.2016 made in CMP.No.18156 of 2016 in CRP.NPD.Sr.No.84481
of 2016)
For Petitioners : Mr.A.R.Suresh
For Respondents : Mr.G.Perumal
ORDER
This civil revision petition is directed as against the order
dated 24.10.2016 passed in unnumbered EA.Sr.No.1363 of 2014 in
EP.No.20 of 2011 in OS.No.487 of 1981 on the file of the District
Munsif at Thiruvallur thereby rejected the petition filed under Section 47
of CPC as not maintainable.
2. The petitioners are the defendants in the suit filed by the
respondents herein for declaration and recovery of possession. The said
suit was decreed by the judgment and decree dated 27.09.1991 and the
same was confirmed by this Court by the judgment and decree dated
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CRP.NPD.No.3645 of 2016
20.04.2011 in SA.No.512 of 1998. Thereafter, the respondents filed
execution petition for execution of decree of recovery of possession. While
pending the same, the petitioners filed petition under Section 47 of CPC
raising various issues beyond the decree. As such the court below rejected
the application as not maintainable for the reason that the execution court
cannot go beyond the decree and the questions raised and decided before
the trial court and the appellate court cannot be again raised in the
execution proceedings.
3. The learned counsel for the petitioners submitted that without
even numbering the petition field under Section 47 of CPC, it cannot be
rejected as not maintainable. In support of his contention, he relied upon
the judgment in the case of K.Venkatesan & Others Vs.
E.Hemantharaj reported in CDJ 2016 MHC 5629, wherein it is held as
follows:
6.Though the said contention cannot be raised by the
Judgment Debtors in the Section 47 application in view of the
above referred judgment, the Executing Court had rejected
the petition going into the merits without numbering the
application. The Executing Court could have disposed of the
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CRP.NPD.No.3645 of 2016
application after numbering the application filed under
Section 47 of the Civil Procedure Code. If an application filed
under Section 47 is rejected on the question of
maintainability, then there is no necessity for going into the
merits of the matter. If the Court goes into the merits of the
matter, then the application has to be numbered.
This Court held that for the execution court, if any application filed under
Section 47 of CPC is rejected on the question of maintainability, then there
is no necessity for going into the merits of the matter. If the court goes
into the merits of the matter, then the application has to be numbered.
4. In the case on hand, the execution court rejected the petition
filed under Section 47 of CPC as not maintainable for the reason that the
issues raised in the application filed under Section 47 of CPC were raised
already before the trial court and also the appellate court.
5. Considering the above, this civil revision petition is allowed
and the order dated 24.10.2016 in unnumbered EA.Sr.No.1363 of 2014 in
EP.No.20 of 2011 in OS.No.487 of 1981 on the file of the District Munsif at
Thiruvallur is set aside. It is made clear that the execution court is directed
to number the said petition and pass orders on merits and in accordance
with law within a period of four weeks from the date of numbering the
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CRP.NPD.No.3645 of 2016
petition, if the delivery of possession is not effected. Consequently,
connected miscellaneous petition is closed. No order as to costs.
05.03.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3645 of 2016
G.K.ILANTHIRAIYAN,J.
lok
To
The District Munsif at
Thiruvallur
CRP.NPD.No.3645 of 2016
05.03.2021
https://www.mhc.tn.gov.in/judis/
