Madras High Court
Ganesan vs Malaiyan on 18 April, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.(NPD).No.2771 of 2016
and C.M.P.No.14180 of 2016
Ganesan ... Petitioner
vs.
1.Malaiyan
2.Pichaikari ... Respondents
Prayer: Civil Revision Petition filed under Section 115 of Civil Procedure
Code, praying to set aside the fair and decretal order in E.A.No.24 of 2014
in E.P.No.17 of 2011 in O.S.No.102 of 2004, dated 13.04.2016, on the file
of the Principal District Munsif, Kallakurichi and thereby allow the
revision.
For Petitioner : Mr.N.Suresh
For Respondents : No Appearance
ORDER
The revision petitioner herein, filed a suit for specific
performance against the first respondent in O.S.No.102 of 2004 and
obtained a decree. After execution of the decree for specific performance,
a sale deed appeared to have been executed by the Court on 19.08.2010 and
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thereafter, the revision petitioner filed E.P.No.17 of 2011 for delivery of the
property covered under the said sale deed.
2. When the above said execution petition in E.P.No.17 of
2011 is pending, the revision petitioner filed E.A.No.389 of 2011 against
the first respondent/judgment debtor seeking a direction to demolish the
Terraced house found in the suit property, after evicting the 3 rd party
residing therein. The said Application was dismissed by the Executing
Court on the ground that when, admittedly the 3rd party is found to be in
possession of the property in question, without impleading the 3rd party, the
petitioner is not entitled to seek any relief and consequently the E.A.No.389
of 2011 was dismissed. Thereafter, the revision petitioner filed another
Application in E.A.No.24 of 2014, seeking same relief after impleading the
3rd party found to be in possession of the suit property namely, the second
respondent herein.
3. However for the reasons best known to the revision
petitioner, he has not pressed the Application in E.A.No.24 of 2014 as
against the second respondent and proceeded with the case as against R1
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alone. The executing Court dismissed the E.A.No.24 of 2014 by observing
that similar application filed against the first respondent in E.A.No.389 of
2011 was already dismissed on the ground that the 3rd party, who is in
possession of the suit property had not been impleaded.
4. Now in the present Application also the revision petitioner
for the reasons best known to him not pressed the petition against the
second respondent/3rd party. Hence, in view of the dismissal of the earlier
Application against the first respondent, the second application for very
same relief is not maintainable and consequently, dismissed the execution
application.
5. Aggrieved by the said order, the decree holder/revision
petitioner has come up with this revision.
6. I have heard the arguments of Mr.N.Suresh, learned counsel
appearing for the revision petitioner. The first respondent though served
there is no representation.
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7. It is brought to the notice of this Court that the second
respondent is already dead. From the impugned order, it is very clear
E.A.No.24 of 2014 was dismissed as against the second respondent as not
pressed even before the executing Court. Hence the revision petitioner is
not entitled to array the second respondent as a party in this revision.
Hence, this Court proceed to dispose of the revision after hearing the
arguments of the learned counsel for the petitioner.
8. From a perusal of the impugned order, it is clear that that the
revision petitioner earlier filed an Application for removal of construction
in the suit property and eviction of the 3rd party found to be in a possession
in E.A.No.389 of 2011, without impleading the 3rd party and hence it was
dismissed. Subsequently, the revision petitioner filed E.A.No.24 of 2014,
but for the reasons best known to the revision petitioner, E.A.No.24 of
2014 was not pressed as against the said 3rd party namely Pichaikari/second
respondent therein. Consequently, E.A.No.24 of 2014 was dismissed by the
executing Court as against R1 also, on the ground, a similar application
was earlier dismissed in E.A.No.389 of 2011, on the ground of
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non- impleadment of 3rd party found to be in possession of suit property.
Now, in the present application, though the 3rd party was originally arrayed
as 2nd respondent, subsequently, when Application was taken up for hearing,
the same was not pressed as against 3rd party. Therefore, the executing
Court finding no merit rightly dismissed E.A.No.24 of 2014, citing
dismissal of similar petition earlier.
9. There is no irregularity or illegality in the order passed by
the Executing Court and therefore the revision petition is dismissed. There
is no order as to costs. Consequently, connected miscellaneous petition is
closed.
18.04.2022
Index : Yes/No
Internet : Yes/No
ub
To
The Principal District Munsif, Kallakurichi.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
ub
C.R.P.(NPD).No.2771 of 2016
18.04.2022
https://www.mhc.tn.gov.in/judis
