Madras High Court
K.Andal vs Vadivelan on 2 August, 2022
C.R.P(NPD)(MD).No.1548 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE B.PUGALENDHI
C.R.P(NPD)(MD).No.1548 of 2022
and
C.M.P(MD).No.6657 of 2022
1.K.Andal
2.K.Rajasekar ... Petitioners
Vs.
Vadivelan ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of C.P.C, to
call for the records relating to the fair and executable order dated
13.07.2022 made in E.A.No.2 of 2022 in E.P.No.53 of 2021 on the file of
the Sub-Court, Periyakulam and set aside the same.
1/7
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C.R.P(NPD)(MD).No.1548 of 2022
For Petitioner : Mr.R.Suriya Narayanan
For Respondent : Mr.M.Maharaja
ORDER
This Civil Revision Petition has been filed as against the fair and
executable order, dated 13.07.2022 passed in E.A.No.2 of 2022 in
E.P.No.53 of 2021, by the Sub Court, Periyakulam.
2. The learned counsel appearing for the petitioners submits that
the petitioners herein have filed a suit for declaration and injunction
against the respondent in O.S.No.49 of 2017 and the respondent has filed
a suit in O.S.No.21 of 2014 for declaration and recovery of possession.
In a common judgment and decree, the suit in O.S.No.49 of 2017 was
dismissed and the suit in O.S.No.21 of 2014 was decreed. Against the
common judgment and decree, the petitioners herein have preferred an
appeal in A.S.No.22 of 2022 before the Principal District Court, Theni,
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C.R.P(NPD)(MD).No.1548 of 2022
which is pending. In the meanwhile, the respondent has filed the
Execution Petition for delivery. Hence, the petitioners herein have filed
the stay petition in E.A.No.2 of 2022. However, the trial Court dismissed
the petition filed by the petitioner on 13.07.2022. Under Order 21 Rule
26 CPC, the Executing Court has power to grant stay for a limited period.
Without giving an opportunity to the petitioners, the trial Court is
proceeding with the Execution Petition. If the delivery is effected during
the pendency of the first appeal, which is a statutory right to the
petitioners, the petitioners will be put into irreparable loss.
3. The learned counsel appearing for the respondent submits that
the suit property was originally in the name of one Kannammal and the
only legal heir of Kannammal is her brother, namely, Kannan. After her
demise, the said Kannan had succeeded the suit property and he
conveyed the title of suit property to his daughter by way of Will, dated
26.04.1983. Thereafter, his daughter, namely, Viji, has executed the
power of attorney in favour of fifth defendant. By strength of the power
of attorney, he had sold the suit property to the sixth defendant and one
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C.R.P(NPD)(MD).No.1548 of 2022
Senbagapandian. The said Senbagapandian and the sixth defendant had
sold the property to the respondent herein/seventh defendant by virtue of
sale deed, dated 19.01.2011. Further, the petitioners cannot challenge the
sale deed dated 19.01.2011, without challenging the prior encumbrances.
After considering the materials available on record, the trial Court has
granted the declaratory decree in favour of the respondent and granted
two months time to the petitioners to deliver the property to the
respondent herein. In order to drag on the proceedings, the petitioners
have filed the present petition.
4. This Court considered the rival submissions made on both sides
and perused the materials available on record.
5. It is seen from the records that the trial Court has passed the
common judgment and decree in O.S.Nos.21 of 2014 and 49 of 2017, in
favour of the respondent herein, wherein, the decree of declaration was
granted in favour of the respondent herein and a permanent injunction
was granted restraining the petitioners herein from making encumbrances
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C.R.P(NPD)(MD).No.1548 of 2022
in respect of the suit property. Thereafter, the petitioners have preferred
an appeal in A.S.No.22 of 2022 before the Principal District Court,
Theni. In the meanwhile, the respondent herein has filed the Execution
Petition in E.P.No.53 of 2021, which is pending. Pending the execution
proceedings, the petitioners herein have filed the stay petition in E.A.No.
2 of 2022 before the Sub Court, Periyakulam. On 13.07.2022, the Sub
Court, Periyakulam, by referring to the judgment of the Hon'ble Supreme
Court of India in the case of G.Arumugam vs. P.Jeyaraman reported in
2014(1) CTC 246, has dismissed the petition by stating that the
petitioner has to approach the Appellate Court for getting stay in
execution proceedings. There is no error on the part of the Sub Court,
Periyakulam, in dismissing the application filed by the petitioner,
because, in order to get stay of the execution proceedings, the petitioner
has to approach the Appellate Court. However, considering the fact that
the appeal is pending in A.S.No.22 of 2022 before the Principal District
Court, Theni, it is open to the petitioners to work out their remedy by
filing necessary application for appropriate relief before the Appellate
Court.
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C.R.P(NPD)(MD).No.1548 of 2022
6. Accordingly, this Civil Revision Petition is dismissed. No costs.
Connected miscellaneous petition is closed.
02.08.2022
Index : Yes/No
Internet : Yes
Speaking/Non-speaking order
ssb
To
Sub Court, Periyakulam
https://www.mhc.tn.gov.in/judis
C.R.P(NPD)(MD).No.1548 of 2022
B.PUGALENDHI,J
ssb
Order made in
C.R.P.(NPD)(MD).No.1548 of 2022
Dated:
02.08.2022
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