Madras High Court
Mrs. J.Prathiba Nesam vs Subbu Raj on 21 September, 2021
C.R.P(PD)(MD)No.1381 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :21.09.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(PD)(MD).No.1381 of 2021
and
C.M.P.(MD) No.7841 of 2021
Mrs. J.Prathiba Nesam ... Petitioner
-vs-
1. Subbu Raj
2. Jeyaraj ... Respondents
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order passed in unnumbered E.A.No....
of 2021 in E.P.No. 18 of 2014 in O.S.No.137 of 2008 on the file of the
Subordinate Judge, Thoothukudi dated 17.09.2021 and allow the present
Civil Revision Petition.
For Petitioner : Mr.R.J.Karthick
1/6
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C.R.P(PD)(MD)No.1381 of 2021
ORDER
This Civil Revision Petition has been filed seeking a direction to set
aside the order passed in unnumbered E.A.No.... of 2021 in E.P.No. 18 of
2014 in O.S.No.137 of 2008, on the file of the learned Subordinate Judge,
Thoothukudi, dated 17.09.2021.
2. Heard Mr.R.J.Karthick, learned counsel appearing for the
petitioner.
3. The learned counsel for the petitioner would submit that the first
respondent herein has filed a Suit in O.S.No.137 of 2008, on the file of the
Subordinate Court, Thoothukudi for declaration of the suit schedule
property and recovery of possession. The suit was decreed on 30.09.2013.
The first respondent has filed an Execution Petition in E.P.No.18 of 2014,
for maintainability and the learned counsel sought adjournments on many
occasions and finally the application was rejected by virtue of the impugned
order. Thereafter, the petitioner has filed an impugned E.A. under Order 21
Rule 97 of C.P.C seeking adjudication of the petitioner's objection stating
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C.R.P(PD)(MD)No.1381 of 2021
that decree in O.S.No.137 of 2008 and the consequential E.P.No.18 of 2014
does not binds the petitioner. Hence, the present Civil Revision petition is
filed.
4. The Revision Petitioner, who is a third party, filed the unnumbered
E.A and objecting the possession of the defendant, contending that she is in
possession of the suit property. Before ordering the recovery of portion, the
right of third party has to be decided in the E.A, as per judgment of the
Hon'ble Supreme Court in Tanseem – E – Sufia Vs. Bibi Haliman and
others reported in [(2002) 7 SCC 50] which is as follows:-
“Civil Appeal No. 5457 of 2002, decided on
September 3, 2002 Civil Procedure Code, 1908 – Or.21
Rr 97, 99 & 101 and S.148-A Application under R.97 –
Reference in, to the said provision, if necessary –
Eviction suit decreed – Petition for issuance of a writ of
delivery of possession filed before executing court by
decree – holder – The said petition indicating that there
was resistance/obstruction in delivery of possession by,
and at the instance of, a third party – Such an
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C.R.P(PD)(MD)No.1381 of 2021
application although not specifically referring to Or.21
R.97, held, is in fact an application under that provision
– Hence, entitles such a third party to be heard before its
disposal – More so when the said third party had already
filed a caveat in that regard – In view of R.101, held,
High Court erred in refusing hearing to such a third
party merely because that party had already filed a suit
for declaration of its own title and for a further
declaration that the decree passed in the eviction suit
was not binding on it – Further held, the remedy of the
said third party in such a case was not limited to the
remedy of Or.21 R.99 only”.
5. So, the third party/ revision petitioner must be heard before passing
an order in E.P.No. 18 of 2014.
6. Considering the facts and circumstances of the case, this Court
directs to the learned Subordinate Judge, Thoothukudi to number the E.A, if
it is otherwise in order and after hearing both the parties, the learned
Subordinate Judge, shall decide the E.A, on merits and in accordance with
law, before passing order in E.P.No.18 of 2014.
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C.R.P(PD)(MD)No.1381 of 2021
7. With the above direction, this Civil Revision Petition is disposed
of. No costs. Consequently, the connected Civil Miscellaneous Petition is
closed.
21.09.2021
Index : Yes / No
Internet : Yes / No
ebsi
Note: Issue order copy on 05.10.2021
To
1. The Subordinate Court,
Thoothukudi
Note :
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
https://www.mhc.tn.gov.in/judis/
C.R.P(PD)(MD)No.1381 of 2021
S.ANANTHI,J.
ebsi
C.R.P.(PD)(MD).No.1381 of 2021
and
C.M.P.(MD) No.7841 of 2021
21.09.2021
https://www.mhc.tn.gov.in/judis/
