Madras High Court
S.Jeevan vs J.Gunalam on 5 October, 2021
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
S.Jeevan ... Petitioner /
8th Defendant
versus
1.J.Gunalam
2.J.Ravichandran
3.J.Sathyaseelan ... Respondents /
Plaintiffs
4.M.Philip @ Kannusamy
5.M.Prabu
6.M.Jesudass
7.M.John Samuvel
8.M.Saraswathi @ Saroja
9.Janaki @ Johnsibai
Chinnammal (Died)
10.The Thasildar,
Taluk Office,
Erode - 1.
11.The District Collector,
Erode District,
Erode. ... Respondents /
Defendants 1 to 7,
9 & 10
1/6
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
PRAYER: Civil Revision Petition has been filed under Section 115 of the Code of
Civil Procedure, to set aside the fair and final order passed in E.P.R.No.56 of 2017
in O.S.No.786 of 2005 before the learned I Additional District Munsif, Erode,
dated 14.08.2021.
For Petitioner : Mr.B.Gopalakrishnan
ORDER
This Civil Revision Petition is filed, challenging the order dated
14.08.2021 passed by the learned I Additional District Munsif, Erode, in
E.P.R.No.56 of 2017 in O.S.No.786 of 2005.
2. The learned counsel for the petitioner submitted that, the
respondents have filed the suit for declaration of title in respect of the suit
property; declaration that the impugned HSD Thoraya Patta No.572 obtained by
the father of the defendants 1 to 6, namely, Manuel pertaining to an extent of 894
sq.ft. on the western portion, within the suit property without the knowledge and
consent of the plaintiffs as sham, nominal, fradulent, null and void and does not
bind the plaintiffs; declaration that the impugned Sale Deed dated 06.11.1995
alleged to have been executed by the defendants 1 to 6 along with their father,
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
Manuel, in favour of the 8th defendant, as sham and nominal and does not bind the
plaintiffs and deliver possession of the property covered under the Sale Deed dated
06.11.1995.
3. This suit, after contest, was dismissed on 18.06.2010. The
respondents 1 to 3 filed an appeal in A.S.No.75 of 2010 and that appeal was
allowed, by setting aside the judgment of the trial Court and decreed the suit with
the direction to the defendants to remove the encroachments in the suit property
and handover the possession, within a period of three months. Against this
judgment, the Judgment Debtors filed S.A.No.539 of 2011 and Second Appeal
came to be dismissed on 02.01.2017.
4. The learned counsel for the petitioner submitted that, the
Review Application is filed against the judgment made in Second Appeal and it is
yet to be numbered. Meanwhile, the Decree Holders are trying to execute the
decree. The learned I Additional District Munsif, has also ordered delivery of the
property. Therefore, this petition. It is further submitted by the learned counsel for
the petitioner that, there is a dispute in identification of the property because there
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
is change in Survey Number in the description of the property and the patta given
in favour of the petitioner. Therefore, he prayed for setting aside the order passed
in E.P.
5. Considered the submissions and perused the records.
6. If really, there is change or discrepancy in the Survey Number
in the patta given to the petitioner and in the schedule of the property, this issue
ought to have been raised before the trial Court. It appears that this issue was not
raised before the trial Court. This Court, on perusal found that, the description of
property given in decree in A.S.No.75 of 2010 and the description of property
given in E.P.R.No.56 of 2017 are one and the same. There is no difference or
discrepancy in the description property. The properties are identified with 4
boundaries, with specific extent. Therefore, the contention of the learned counsel
for the petitioner that, there is discrepancy in describing the property and
difficulties in identifying the property, cannot be accepted.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
7. The suit was filed in 2005. This First Appellate Court decided
the case on 23.12.2010. Second Appeal was disposed on 02.01.2017. There is no
S.L.P. was filed. Though it is alleged that Review Application was filed for
reviewing the judgment in S.A.No.539 of 2011, it is seen that the review
application is not numbered. Therefore, there is no reason to further withhold the
proceedings in the Execution Petition. The Executing Court has gone through the
records and passed the order of delivery. Therefore, this Court finds no reason to
differ with the order of the learned I Additional District Munsif, Erode and the
order dated 14.08.2021 made in E.P.R.No.56 of 2017 in O.S.No.786 of 2005, is
hereby confirmed.
8. Resultantly, this Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. However, there is no
order as to costs.
05.10.2021
Speaking order / Non-speaking order
Index : Yes / No
psa / sri
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
G.CHANDRASEKHARAN, J.
psa / sri
To
1.The 1st Additional District Munsif,
Erode.
2.The Thasildar,
Taluk Office,
Erode - 1.
3.The District Collector,
Erode District, Erode.
C.R.P. (NPD) No.2186 of 2021
and C.M.P. No.16592 of 2021
05.10.2021
https://www.mhc.tn.gov.in/judis/
