Madras High Court
A.Saraswathi vs J.Muniyammal on 17 April, 2023
C.R.P(MD)Nos.1014 and 1015 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)Nos.1014 and 1015 of 2023
and
C.M.P(MD)No.4767 of 2023
C.R.P(MD)No.1014 of 2023
A.Saraswathi ... Petitioner/Petitioner
Vs.
J.Muniyammal ...Respondent/Respondent
PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C.,
to set aside the fair and decreetal order passed in E.A.No.2 of 2023 in
E.P.No.233 of 2019 in O.S.No.427/2016 dated 03.03.2023 on the file of
the learned Additional District Munsif, Madurai Town, Madurai.
For Petitioner : Mr.C.M.Arumugam
For Respondent : Mr.T.R.Jeyapalam
C.R.P(MD)No.1014 of 2023
A.Saraswathi ... Petitioner/Petitioner
Vs.
J.Muniyammal ...Respondent/Respondent
https://www.mhc.tn.gov.in/judis
C.R.P(MD)Nos.1014 and 1015 of 2023
PRAYER: Civil Revision Petition is filed under Section 115 of C.P.C.,
to call for the entire records pertaining to the Execution Application in
E.A.No.3 of 2023 in E.P.No.233 of 2019 in O.S.No.427 of 2016 dated
03.03.2023 on the file of the learned Additional District Munsif, Madurai
Town, Madurai and to set aside the same.
For Petitioner : Mr.C.M.Arumugam
For Respondent : Mr.T.R.Jeyapalam
COMMON ORDER
C.R.P(MD)No.1014 of 2023 has been filed against the order dated
03.03.2023 in E.A.No.2 of 2023. E.A.No.2 of 2023 has been filed by the
petitioner under Order 26 Rule 9 of C.P.C for appointment of Advocate
Commissioner to identify the property.
2. C.R.P(MD)No.1015 of 2023 has been filed against the order
dated 03.03.2023 in E.A.No.3 of 2023. E.A.No.3 of 2023 has been filed
by the petitioner under Order 21 Rule 97 of C.P.C.
3. The specific case of the petitioner is that though the respondent
herein has secured favourable judgment and decree in O.S.No.427 of
2016 on 12.04.2019, the identity of the property, which is in possession
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C.R.P(MD)Nos.1014 and 1015 of 2023
of the petitioner herein is different from the identity of the property in
O.S.No.427 of 2016, as decreed on 12.04.2019. It was submitted that the
property in question belongs to Kamatchiamman Temple. The
petitioner's father, namely, Alagarservai, who was in possession of the
same had put up the super structure. It is submitted that the Trial Court
committed an error in rejecting the obstruction petition filed by the
petitioner under Order 21 Rule 97 of C.P.C.
4. Per contra, the learned counsel for the respondent/plainitff
(decree holder) submits that the present civil revision petitions are
misconceived as no appeal is maintainable against the order passed under
Order 21 Rule 98 of C.P.C. It is submitted that the order passed under
Order 21 Rule 98 of C.P.C is decree within the meaning of Section 2 (2)
of C.P.C and therefore, if at all the petitioner is aggrieved by such order,
she has to invoke the jurisdiction of the appellate Court under Section 96
read with Order 41 of C.P.C. It is submitted that the appeal does not lie
against the interim order passed under Order 43 of C.P.C., and therefore
cannot be countenanced as submitted by the learned counsel for the
petitioner.
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C.R.P(MD)Nos.1014 and 1015 of 2023
5. That apart, the learned counsel for the respondent has drawn
attention to the decision of the learned Single Judge of this Court in the
case of Periaswamy Vs Anchalai Ammal and others reported in (1997)
2 LW 621, wherein, the Court held that the revision is not maintainable as
an appeal will lie against the order passed under Order 21 Rule 103 of
C.P.C.
6. By way of rejoinder, the learned counsel for the petitioner
submitted that the petitioner has already given an undertaking before the
execution Court that the petitioner will vacate the property, in case, the
property is ultimately found to be the property, which was subject matter
of O.S.No.427 of 2016.
7. The learned counsel for the respondent even otherwise
submitted that the petitioner has merely filed docket order when indeed
the respective E.A.s (E.A.Nos.2 and 3 of 2023) have been disposed of
by a reasoned order. It is submitted that even on this count, the
discretionary remedy under Section 115 of C.P.C ought not to be
exercised. The learned counsel for the respondent further submitted that
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C.R.P(MD)Nos.1014 and 1015 of 2023
the schedule given in the application in E.A.Nos.2 and 3 of 2023 is not
clear. It is submited that the boundaries for 266 square feet of land has
not been separately given in the respective E.A.s. (E.A.Nos.2 and 3 of
2023). Only the outer boundary has been described.
8. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
9. The undertaking given by the petitioner before the execution
Court as also before this Court stands reiterated and recorded. The
respondent's husband, late Jegan Mohan, had originally filed O.S.No.60
of 1992 for injunction and for recovery of possession and that the suit
came to be decreed on 30.04.1996. The said suit was filed against the
defendants therein, namely, Nagalakshmi and Rajeswari, who are none
other than the sisters of the petitioner. It appears that the defendants
therein in O.S.No.60 of 1992 had also filed A.S.No.87 of 1996, which
was also dismissed.
10. The case of the respondent is that the persons, who are in
possession of the property, were thereafter allowed to continue in
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C.R.P(MD)Nos.1014 and 1015 of 2023
possession as permissible occupants. Thereafter, the respondent herein,
after the death of her husband on 20.01.2014 instituted a fresh suit in
O.S.No.427 of 2016, which came to be decreed on 12.04.2019. It is
submitted that pursuant to the decree passed in O.S.No.427 of 2016 on
12.04.2019, E.P.No.233 of 2019 was filed by the respondent. It appears
that the delivery was ordered. When the respondent proceeded to take
delivery of the property, the petitioner herein filed obstruction petition
under Order 21 Rule 97 of C.P.C., which has culminated in the impugned
order.
11. The petitioner has disputed the identity of the property by
stating that the two properties are located in two different survey
numbers. According to the petitioner, the petitioner's property is situated
in T.S.No.1488 (New T.S.No.225) bearing Door No.1A. According to
the respondent, the details given in the schedule are not precise and
contain the larger extent of the property without a proper description of
the boundary for the property in possession of the petitioner herein. The
boundaries in O.S.No.427 of 2016 and E.A.Nos.2 and 3 of 2023 in
E.P.No.233 of 2019 read as under:
https://www.mhc.tn.gov.in/judis
C.R.P(MD)Nos.1014 and 1015 of 2023
CRP(MD)No.1014 of 2023 CRP(MD)No.1015 of 2023
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12. Prima facie, it appears that the civil revision petitions itself are
misconceived as the petitioner has an alternate remedy by way of an
appeal before the appellate Court for the order passed under Order 21
Rule 98 of C.P.C. and therefore, the appeal has to be filed under Section
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C.R.P(MD)Nos.1014 and 1015 of 2023
97 of C.P.C.
13. Be that as it may, considering the fact that an undertaking is
given by the petitioner and considering the fact that the petitioner also
conceed that a property except the superstructure does not belong to her,
there shall be a direction to the Additional District Munsif Court,
Madurai to depute the Amin to visit the property as per the schedule to
the plaint in O.S.No.427 of 2016 to take delivery of the same. In case, the
property described in the schedule in E.A.Nos.2 and 3 of 2023 are within
the larger extent of the schedule of property in O.S.No.427 of 2016, the
petitioner shall deliver the property to the respondent. This exercise shall
be carried out by the Additional District Munsif Court, Madurai within a
period of 30 days from the date of receipt of copy of this order. The
Court Amin shall take the assistance of the officials from the revenue
department/officers from the Town Survey Department to identify the
property.
14. The present Civil Revision Petitions stand disposed of with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
17.04.2023
NCC : Yes / No
Index : Yes / No
https://www.mhc.tn.gov.in/judis
C.R.P(MD)Nos.1014 and 1015 of 2023
Internet : Yes / No
sn
To
1.The Additional District Munsif,
Madurai Town, Madurai
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)Nos.1014 and 1015 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)Nos.1014
and 1015 of 2023
17.04.2023
https://www.mhc.tn.gov.in/judis
