Madras High Court
Sheik Maricar (Died) vs Vijayakumari on 29 October, 2021
C.R.P.(NPD).No.2001 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).No.2001 of 2014
and M.P.No.1 of 2014
1.Sheik Maricar (died)
2.F.Izzath Beevi
3.S.Zarinabe
4.S.Mohamed Saleem
5.S.Mohamed Meharaj
6.S.Hasan Kuthoos
7.S.Sirajudeen .. Petitioners
(Petitioners 2 to 7 brought on record as
LRs of the deceased sole petitioner viz.,
Sheik Maricar, vide Court order dated
07.09.2021 made in C.M.P.No.6862 of
2021 in C.R.P.No.2001/2014)
Vs.
1.Vijayakumari
2.Anuradha
3.Suryakumari
4.Jawaharbabu
5.Baskaran
6.Geetharani .. Respondents
1/11
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C.R.P.(NPD).No.2001 of 2014
Prayer: Civil Revision Petition filed under Section 115 of C.P.C., against
the fair and decreetal order dated 29.10.2013 made in E.A.No.8 of 2005
in E.P.No.94 of 2002 in O.S.No.245 of 1985 on the file of the Principal
Sub Court at Puducherry.
For Petitioners : Mr.A.S.Kaizer
For Respondents : M/s.S.Subramanian
ORDER
(The matter is heard through 'video conferencing/hybrid mode')
This Civil Revision Petition is filed against the fair and decreetal
order dated 29.10.2013 made in E.A.No.8 of 2005 in E.P.No.94 of 2002
in O.S.No.245 of 1985 on the file of the Principal Sub Court at
Puducherry.
2.The 1st petitioner is judgment debtor in O.S.No.245 of 1985 on
the file of the Principal Sub Court at Puducherry. Pending Civil Revision
Petition, he died and his legal heirs were impleaded as petitioners 2 to 7.
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C.R.P.(NPD).No.2001 of 2014
One Anusuya Ammal @ Anusuya Bai filed O.S.No.245 of 1985 on the
file of the Principal Sub Court at Puducherry, against the 1st petitioner for
declaration of title and possession of the suit property after demolishing
the superstructure put up by the 1st petitioner and for permanent
injunction. The said suit was decreed, declaring title of plaintiff, but the
learned Judge, in equity, directed the 1st petitioner to pay a sum of
Rs.5,100/- to the plaintiff, being the value of the land. The plaintiff filed
A.S.No.211 of 1988 and the 1st petitioner filed Appeal Suit No.13 of
1989. The learned I Additional District Judge, Pondicherry, by common
judgment dated 13.11.1989 allowed A.S.No.211 of 1988, confirming the
judgment and decree of the Trial Court in O.S.No.245 of 1985 dated
09.08.1988 with regard to title of the plaintiff and set aside the order of
the Trial Court, directing the 1st petitioner to pay a sum of Rs.5,100/- to
the plaintiff, being the value of the land and directed the 1st petitioner to
deliver vacant possession of the suit property after demolishing the
superstructure put up by him and dismissed the Appeal Suit in A.S.No.13
of 1989.
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C.R.P.(NPD).No.2001 of 2014
3.Challenging the common judgment dated 13.11.1989 in
A.S.No.211 of 1988 and Appeal Suit No.13 of 1989, the 1st petitioner
filed S.A.Nos.34 and 35 of 1990. This Court, by the judgment and decree
dated 31.07.2001, dismissed both the appeals. After dismissal of the
Second Appeals, the decree holder/plaintiff filed E.P.No.94 of 2002 for
delivery of vacant possession, after demolishing the superstructure put up
by the 1st petitioner as per the decree passed in her favour. In the E.P., the
1st petitioner filed counter statement, stating that decree is in-executable.
The 1st petitioner also filed E.A.No.8 of 2005 under Section 47 read with
Sections 94 (e) and 151 of C.P.C., praying to dismiss the E.P., as the
decree is in-executable and for appointment of Commissioner, well
experienced Civil Engineer to find out whether demolition of suit
property would cause damage to entire building of the 1st petitioner and
value of the damage that may be caused to the said building. Pending E.P.
and the said E.A., the decree holder died. The respondents herein were
impleaded as petitioners in E.P. and respondents in E.A.No.8 of 2005.
4.Before the learned Judge, the 1st petitioner examined himself as
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C.R.P.(NPD).No.2001 of 2014
P.W.1 and marked Ex.P1 - sale deed, by which the decree holder
purchased the property. The respondents examined the 5th respondent as
R.W.1 and marked 9 documents as Exs.R1 to R9. The learned Judge
considering the materials placed before her and the fact that the suit
reached up to Second Appeals before this Court and this Court dismissed
the Second Appeals filed by the 1st petitioner, confirming the judgment
and decree of the First Appellate Court, directing the 1st petitioner to
demolish and handover the vacant possession of the suit property to the
decree holder/ plaintiff, dismissed E.A.No.8 of 2005 in E.P.No.94 of
2002.
5.Against the said order dated 29.10.2013 made in E.A.No.8 of
2005 in E.P.No.94 of 2002 in O.S.No.245 of 1985, the 1 st petitioner filed
the present Civil Revision Petition. Pending Civil Revision Petition, the
1st petitioner died and his legal heirs were impleaded as petitioners 2 to 7.
6.The learned counsel appearing for the petitioners reiterated the
averments in the affidavit filed in support of E.A. and submitted that the
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C.R.P.(NPD).No.2001 of 2014
learned Judge failed to deal with the application filed under Section 47 of
C.P.C., in proper perspective, which says that all the questions arising
between the parties to the suit in which the decree was passed or their
representatives, relating to the execution, discharge or satisfaction of the
decree shall be determined by the Court executing the decree and not by
separate suit. The learned counsel for the petitioners further contended
that this Court appointed an Advocate Commissioner who inspected the
suit property along with the Chartered Civil Engineer, stating that if stair
case is demolished, the building of the petitioners will be damaged and
prayed for allowing the Civil Revision Petition.
7.Per contra, the learned counsel appearing for the respondents
referring to the judgment of this Court in Second Appeals and prayed for
dismissal of the Civil Revision Petition.
8.Heard the learned counsel appearing for the petitioners as well as
the respondents and perused the materials available on record.
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C.R.P.(NPD).No.2001 of 2014
9.From the materials on record, it is seen that the plaintiff has
obtained a decree of declaration of title and for demolition of
superstructure put up by the 1st petitioner. This Court, by the judgment
and decree dated 31.07.2001, dismissed the Second Appeal Nos.34 and
35 of 1990, filed by the 1st petitioner, confirming the decree of title of the
plaintiff and also the judgment and decree of the First Appellate Court,
directing the 1st petitioner to demolish and handover vacant possession of
the suit property to the plaintiff/decree holder. The 1st petitioner did not
challenge the judgment and decree of this Court and the said judgment
has become final. The Executing Court cannot go beyond the decree
passed by the competent Court having jurisdiction. In the petition filed
under Section 47 of C.P.C., the Executing Court can hold a decree
inexecutable, only when a Court without jurisdiction passed a decree and
if the decree is null and void ab initio. In the present case, the decree has
been passed by the competent Court, especially by this Court, exercising
the appellate jurisdiction by dismissing two Second Appeals filed by the
1st petitioner. In view of the same, it cannot be said that the decree now
sought to be executed is passed by a Court without jurisdiction or such
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C.R.P.(NPD).No.2001 of 2014
decree is nullity or void ab initio.
10.As far as the Commissioner's report is concerned, the Advocate
Commissioner appointed by this Court inspected the suit property along
with Chartered Engineer in the presence of 1st petitioner's Advocate.
There is nothing on record to show that the Advocate Commissioner
issued notice to the respondents 1 to 7 in E.A., intimating the date of
inspection. The 5th respondent has filed objection to the Commissioner's
report, bringing to the notice of this Court that the Advocate
Commissioner inspected the suit property in their absence and therefore,
the report of the Advocate Commissioner is invalid and not binding on
the respondents. The 5th respondent also contended that the First
Appellate Judge, considering the judgment of the First Additional
District Judge, found that the District Judge made spot inspection of the
suit property and noting the physical features, found that the 1st petitioner
had put up another stair case in the other side, anticipating the demolition
of stair case. Only after such inspection, the learned First Additional
District Judge ordered demolition of stair case and ordered the 1st
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C.R.P.(NPD).No.2001 of 2014
petitioner to deliver vacant possession after demolition, to the
plaintiff/decree holder. This Court dismissed the Second Appeals filed by
the 1st petitioner. In view of the judgment of the First Additional District
Judge as well as this Court in the Second Appeals, the Advocate
Commissioner's report in the Civil Revision Petition is not acceptable,
especially when the Advocate Commissioner inspected the suit property
in the absence of respondents and given contrary report to the finding of
the learned Judge. For the above reason, there is no error in the order of
the learned Judge warranting interference by this Court.
In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
29.10.2021
Index :: Yes/No
gsa
To
The Principal Subordinate Judge,
Puducherry.
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C.R.P.(NPD).No.2001 of 2014
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C.R.P.(NPD).No.2001 of 2014
V.M.VELUMANI, J.
gsa
C.R.P.(NPD)No.2001 of 2014
29.10.2021
https://www.mhc.tn.gov.in/judis
