Madras High Court
K.Bambalammal vs Maruthamalai on 6 January, 2022
C.R.P.(MD) No.1213 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.01.2022
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(MD) No.1213 of 2021
and
C.M.P.(MD) No.6969 of 2021
K.Bambalammal ... Petitioner
vs.
Maruthamalai ... Respondent
PRAYER:- This Petition is filed under Section 115 of the Code of Civil
Procedure, to set aside the order dated 10.08.2021 passed in E.A.No.204 of
2019 in E.A.No.198 of 2017 in E.P.No.119 of 2016 in O.S.No.2 of 2013 by the
Sub Court, Sivakasi.
For Petitioner : Mr.T.Lenin Kumar
For Respondent : S.C.Herold Singh
ORDER
The defendant in a suit O.S.No.2 of 2013 filed for specific performance
on the file of the learned Subordinate Judge, Sivakasi, is the revision petitioner
before this Court.
2.The facts in brief are as follows:-
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C.R.P.(MD) No.1213 of 2021
3.The respondent herein had filed a suit O.S.No.2 of 2013 on the file of
the learned Sub Judge, Sivakasi for specific performance of the agreement dated
30.09.2012 and the receipt dated 26.12.2012. The suit was decreed by judgment
and decree dated 03.12.2015. Since the defendant had not come forward to
execute the sale deed as decreed, the plaintiff had filed E.P.No.119 of 2016 on
the file of the Sub Court, Sivakasi for a direction to the defendant to execute the
sale deed, failing which, seeking the execution of the sale deed by the Court.
After contest, the said execution petition was allowed and the sale deed has also
been executed in favour of the plaintiff on 19.01.2017. Thereafter, the
plaintiff/decree holder has filed E.A.No.198 of 2017 seeking delivery of the suit
schedule properties. This petition was allowed on 20.04.2018 and delivery was
also ordered by 25.06.2018. After delivery was ordered, the petitioner/defendant
has come forward with the impugned application invoking the provisions of
Section 47 of the Code of Civil Procedure and contending that the 1st item of
property has not been covered in the judgment passed in O.S.No.2 of 2013.
4.It is the case of the petitioner/defendant that the respondent/decree
holder is trying to take delivery of the property without proper identification.
She would submit that the 1st item of property belonged to one Gurusamy, the
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C.R.P.(MD) No.1213 of 2021
father of the petitioner, who had executed a gift deed in favour of the petitioner
in the year 2000 and she has constructed a house thereupon.
5.The said petition was resisted by the respondent/decree holder interalia
contending that the petition is nothing but an attempt to prolong the delivery of
property. Item Nos. 1 and 2 of the suit schedule property are one and the same
and have the same boundaries. The petitioner/judgment debtor has filed a
petition in respect of the property in S.No.1204/1C instead of 1204/1A. The
property has been described with specific boundaries. The petitioner/judgment
debtor has marked Ex.P1 to Ex.P9 in support of her contention and the
respondent had not marked any document.
6.The learned Judge on perusing the records and the documents furnished
on the side of the judgment debtor came to the conclusion that the properties
described in the decree and the property described in Ex.P1 were one and the
same and there is only a difference in the subdivision. The learned Judge had
observed that there is no dispute with reference to the boundaries and it is only
with reference to the subdivision that there is a dispute. The learned Judge had
also observed that up to the filing of the application under Section 47 of the
Code of Civil Procedure, the petitioner/judgment debtor has not raised any
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C.R.P.(MD) No.1213 of 2021
objection in respect of the survey numbers and therefore, the learned Judge
proceeded to dismiss the application. Challenging the same, the
petitioner/judgment debtor is before this Court.
7.Heard the learned counsel on either side.
8.The learned Subordinate Judge, Sivakasi had extracted the description
of properties in the decree O.S.No.2 of 2013 as follows:-
“tpUJefh; upb, jpUj;jq;fy; rg;b, jpUj;jq;fy; lTd;,
ej;;jk; ru;Nt vz;.1204/1rp epu; Mrhhpkhh; ee;jtdk; njUtpy;
KUNfrd; tPl;bw;Fk; njw;F, fpoNky; nghJ eilghijf;Fk;
tlf;F, njd;tly; nghJ eilghijf;Fk; Nkw;F, fhspag;gd;
tPl;bw;Fk; fpof;F ,jw;Fs; fpoNky; tl jiyab 23.5,
njd;jiyab 23.5, njd;tly; Nky; jiyab 16, fPo;jiyab 16,
cs;sjw;F 376 rJub nfhz;l fhyp kid epyKk; mjpy;
fl;bAs;s Mh;.rp.fl;bl tPLfs; 2k; mjd; rfy rk];jKk;
Nru;j;J rhp. fjT vz;fs; 37/1, 37/2, Mrhupkhh; ee;jtdj;
njUtpy; cs;sJ. thHL vz;.19. Nkw;gb nrhj;J jpUj;jq;fy;
efuhl;rp vy;iyf;Fl;gl;lJ.”
9.The learned Subordinate Judge, Sivakasi had extracted the description
of properties under Ex.P1, under which, the petitioner/judgment debtor has
claimed a right as follows:-
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C.R.P.(MD) No.1213 of 2021
“tpUJefh; upb, jpUj;jq;fy; rg;b, jpUj;jq;fy; lTd;,
ej;;jk; ru;Nt vz;.1204/1V epu; tlf;Fuj tPjpapy; KUNfrd;
tPl;bw;Fk; (njw;F) fpoNky; nghJ eilghijf;Fk; (tlf;F)
njd;tly; nghJ eilghijf;Fk; (Nkw;F) fhspag;gd; tPl;Lf;Fk;;
(fpof;F) ,jw;Fs; fpoNky; epw tyb 23.5, njd;gly; epw tyb
16 cs;sjw;Fk; 376 rJub nfhz;l tPl;lb fhyp kid epyk;.”
10.A perusal of the above description would clearly indicate that the
boundaries are one and the same and it is only with reference to the survey
numbers that there is discrepancy. It is needless to state that the boundary would
prevail over the survey numbers and there is absolutely no difficulty in
identifying the suit schedule property for taking delivery.
11.In the result, the Civil Revision Petition stand dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 06.01.2022
Internet : Yes / No
mm
To
The Subordinate Judge,
Sivakasi.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1213 of 2021
P.T.ASHA, J.
mm
C.R.P.(MD) No.1213 of 2021
06.01.2022
https://www.mhc.tn.gov.in/judis
