Madras High Court
T.Janaki vs Palavesamuthu @ Rajan on 28 January, 2022
C.R.P.(NPD) (MD) No.1710 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.1710 of 2021
and
C.M.P.(MD) No.9162 of 2021
T.Janaki .. Petitioner
-vs-
1.Palavesamuthu @ Rajan
2.T.Padmavathi
3.P.Padmaroseni .. Respondents
Prayer :- Petition filed under Section 115 Civil Procedure Code to set
aside the fair and decretal order dated 30.03.2021 passed in E.P.No.102
of 2010 in O.S.No.634 of 2005 on the file of the I-Additional District
Munsif of Nagercoil.
For Petitioner : Mr.G.Aravinthan
For RR1 & 3 : Mr.T.Selvakumaran
for Mr.R.Jenifar Bibi
******
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C.R.P.(NPD) (MD) No.1710 of 2021
ORDER
The 3rd defendant, aggrieved by the order dated 30.03.2021 passed
in E.P.No.102 of 2010 by the learned I-Additional District Munsif,
Nagercoil, is the revision petitioner before this Court.
2. For ease of the understanding, the parties shall be referred to
as per their litigative status before the trial court.
3. The facts in brief are as follows:-
3.1. The plaintiff-decree holder/1st respondent herein had filed
the suit in O.S.No.634 of 2005 seeking a declaration of his title to the
suit schedule property, demarcating the plaintiff's eastern and northern
boundaries over six cents of property from the 1st defendant's western
side property and for a permanent injunction restraining the 1st defendant
or men or agents from putting up any construction over the plaint
schedule property. The said suit was decreed on 19.09.2008 and the
plaintiff had got the following decree:-
“1/ jgrpy; brhj;J thjpfF
; g; ghj;jpag;gl;lJ vd;W
tpsk;g[ifbra;ag;gLfpwJ/
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C.R.P.(NPD) (MD) No.1710 of 2021
2/ jgrpy; brhj;ija[k;. 1k; gpujpthjpfF
; g; ghj;jpag;gl;l 6
brd;ila[k; gphpff; f;Toa mstpy; jgrpy; brhj;jpd; fPH; gf;f
kw;Wk; tlgf;f vy;iyia eph;zak; bra;a ntz;Lk;/
3/ jgrpy; brhj;jpd; vy;ifia ephz
; ak; bra;j gpwF
me;jr;brhj;jpy; 1k; gpujpthjpa[k;. mtUila tif Ml;fSk;
ve;jtpjkhd fl;LkhdKk;. nkw;bfhs;sf;TlhJ vd;W xU
epue;ju cWj;Jf;fl;lis K:yk; cj;jutplg;gLfpwJ/
4/ 1. 3 gpujpthjpfs;. thjpf;F bryt[bjhif U:/2317/50
bfhLf;f ntz;Lk;/”
4. Thereafter, the 3rd defendant filed A.S.No.5 of 2009 on the
file of the learned I-Additional Subordinate Court, Nagercoil. The
appeal was dismissed by judgment and decree dated 25.11.2009 as
against which, Second Appeal is pending now before this Court..
Subsequently, the decree holder has filed E.P.No.102 of 2010 to execute
the decree. The relief claimed in the execution proceedings is as
follows:-
“ic& tHf;fpy; ,j;Jld; jhf;fy; bra;a[k; mgpltpw;wpy;
Twk; fhuz';fshy; ,e;j kD mDkjpj;J ic& gl;oif
brhj;jpy; Fwpg;gpLk; jPh;g;ghiz go xU brd;Wf;F rkkhd
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C.R.P.(NPD) (MD) No.1710 of 2021
435/6 rJu mo ,lj;ij eph;zak; bra;J fpilf;f
ePjpkd;wj;jpypUe;J Mizah; mDg;gpl ephz
; ak; bra;J
me;j ,lj;ij 1k; vjph;kDjhuhplkpUe;J XHpg;gpj;J kDjhuh;
iftrk; fpilf;f fl;lis gpwg;gpf;FkhW ntz;Lfpnwd;/”
5. While so, the learned I-Additional District Munsif,
Nagercoil has allowed the petition and ordered delivery. The learned
Judge has failed to appreciate that the prayer in the execution
proceedings is not in consonance with the decree granted by the court.
The plaintiff did not get a decree for recovery of possession, nor has he
got a decree to demarcate an extent of 435.6 sq.ft. It is challenging this
excessive decree that the 3rd defendant is before this Court.
6. Heard the learned counsels on either side.
7. The decree, as set out above, does not provide the relief of
recovery of possession or demarcating 435.6 sq.ft. in favour of the decree
holder. The decree, that has been granted, is one for declaration that the
plaintiff is entitled to the suit schedule property and for demarcating the
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C.R.P.(NPD) (MD) No.1710 of 2021
eastern and western boundaries so as to identify the 6 cents of land
belonging to the 1st defendant and for a consequential injunction. The
learned I-Additional District Munsif, Nagercoil has totally failed to refer
to the decree while passing the order and the order has to be necessarily
set aside and the plaintiff be directed to restitute the property back to the
defendants.
8. Mr.T.Selvakumar, learned counsel for the decree holder
would submit that there has been an oversight in drafting the execution
proceedings and consequently, there was an error in the order. He would
submit that the first appeal is dated 25.09.2009 and the period for
enforcing the decree is coming to an end and therefore, liberty should be
granted to the decree holder to amend the present execution proceedings.
9. Since delivery has been ordered, the decree holder is bound
to restitute the property back to the defendants. Delivery shall be
restituted and the parties be placed in the same position as on the date of
the decree. The Civil Revision Petition is, therefore, allowed and the
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C.R.P.(NPD) (MD) No.1710 of 2021
order dated 30.03.2021 passed in E.P.No.102 of 2010 is set aside and
leave is granted to the 1st respondent/decree holder to initiate afresh
execution proceedings. The time for filing the execution petition, i.e.,
the 12th year, is yet to come to an end and further Second Appeal
proceedings are pending challenging the judgment and decree in O.S.No.
634 of 2005 as confirmed in A.S.No.5 of 2009. No costs. Consequently,
connected miscellaneous petition is closed.
28.01.2022
Index : Yes/No
Speaking/Non-Speaking Order
abr
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.
To
The I-Additional District Munsif, Nagercoil.
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https://www.mhc.tn.gov.in/judis
C.R.P.(NPD) (MD) No.1710 of 2021
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.1710 of 2021
Dated: 28.01.2022
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