Madras High Court
Jabasthial Kannan vs Muppidathi (Died) on 6 December, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 10.08.2023
Pronounced on : 06.12.2023
CORAM :
THE HONOURABLE Mrs. JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD).No.909 of 2022
and C.M.P.(MD).No.3624 of 2022
Jabasthial Kannan ...Petitioner
Vs.
Muppidathi (died)
1.Suladai Vadivu,
2.Esakkiammal,
3.Arunachalam ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India,
against the fair order and decretal order dated 06.12.2021, passed in C.M.A No.8 of
2019 on the file of the Principal Sub Court, Tirunelveli, confirming the fair and
decretal order dated 27.08.2019. passed in E.A.No.3 of 2019 in E.P.No.174 of 2013
in O.S.No.595 of 2009 on the file of the Principal District Munsif Court, Tirunelveli.
For Petitioner : Mr.T.Selvam
for Mr.S.B.Kamalanathan
For Respondents : Mr.D.Nallathambi
****
ORDER
This revision petition has been preferred as against the order dated 06.12.2021,
passed in C.M.A.No.8 of 2019 on the file of the Principal Sub Court, Tirunelveli,
confirming the fair and decretal order dated 27.08.2019 passed in E.A.No.3 of 2019
https://www.mhc.tn.gov.in/judis
in E.P.No.174 of 2013 in O.S.No.595 of 2009 on the file of the Principal District
Munsif Court, Tirunelveli.
2.According to the revision petitioner, the revision petitioner/plaintiff filed a
suit in O.S.No.595 of 2009 on the file of the Principal District Munsif Court,
Tirunelveli, in which the respondents/defendants filed a counter claim. The suit was
decreed in favour of the revision petitioner and the respondents preferred A.S.No.
133 of 2012 and A.S.No.149 of 2012 on the file of the Principal Sub Court,
Tirunelveli. Both the appeals were dismissed by the First Appellate Court.
Thereafter, the respondents, as petitioners, filed E.P.No.174 of 2013, to execute the
decree passed in the counter claim. The said execution petition was allowed. The
Court Ameen also visited the suit property and noted that the disputed wall is not
situated in the common lane and returned the warrant by stating that the decree could
not be executed. Hence, the revision petitioner filed E.A.No.3 of 2019 under Section
47 of C.P.C. However, the executing Court has dismissed the above application on
27.08.2019, against which, the revision petitioner preferred C.M.A No.8 of 2019
before the Principal Sub Court, Tirunelveli and the same was dismissed on
06.12.2021.
3.It is the submission of the learned counsel for the revision petitioner that the
disputed wall is not situated in the common lane and decree obtained by the
respondent, cannot be executed by the Courts below. According to him, the Courts
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below ought to have held that as per Ameen's report filed before the executing Court,
the disputed wall cannot be removed, since it is not situated in the common lane and
dismissed the execution petition filed by the respondents. Aggrieved by the same, the
present revision is preferred.
4.On the other hand, the learned counsel for the respondents would submit that
the executing Court cannot go behind the decree passed by the Trial Court, the
respondents/defendants in the suit have filed their counter claim by stating that the
revision petitioner/plaintiff has encroached the common lane and constructed the
disputed wall and therefore, the respondents/defendants sought relief of mandatory
injunction to remove the disputed wall from the common lane. The above counter
claim was allowed by the Trial Court. In pursuance of the decree, the
respondents/defendants filed Execution Petition for removing the disputed wall from
the common lane and the same was also ordered by the executing Court. The Court
Ameen also surveyed the suit property with the Surveyor and filed a report stating
that there is no encroachment in the common lane. However, the Court Ameen,
without adhering to the decree passed by the Trial Court, erroneously returned the
warrant beyond the scope of his power. Further, the executing Court has no power to
re-open the decree passed by the Trial Court. Hence, the Principal Sub Judge has
rightly dismissed the C.M.A filed by the revision petitioner which calls for no
interference.
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5.Heard both sides and perused the records.
6.Admittedly, the Trial Court has allowed the counter claim filed by the
respondents/defendants based on the finding that the revision petitioner/plaintiff has
encroached the common pathway and constructed a wall in the said common
pathway. Therefore, the executing Court cannot travel behind the decree passed by
the Trial Court. That apart in the judgment and decree passed by the Trial Court in
the above suit, it is absent that the respondents, as defendants, were directed not to
interfere with the common pathway enjoyed by the plaintiff. At the same time, it had
also directed the petitioner/plaintiff to remove the disputed wall from the common
lane and granted a decree of mandatory injunction in favour of the
respondents/defendants. Accordingly, the respondents/defendants filed E.P.No.174
of 2013 to remove the disputed wall from the common pathway. Moreover, the
petitioner/plaintiff has categorically admitted about constructing the wall in the
common pathway and contrary to the said admission, he had denied the construction
of the wall in the common pathway in the above execution petition.
7.Moreover, it is the duty of the Court Ameen to execute the decree passed in
favour of the respondents/defendants. The Court Ameen erroneously returned the
warrant by stating that the common wall is situated in the property of the
petitioner/plaintiff, which is contrary to the decree passed by the Trial Court. The
First Appellate Court considering the above facts, has rightly dismissed the above
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C.M.A in C.M.A.No.8 of 2019, which calls for no interference.
In the result, this Civil Revision Petition is dismissed by confirming the fair
and decretal order passed by the First Appellate Court. Connected miscellaneous
petition is closed. There shall be no order as to costs.
06.12.2023
Internet : Yes/No
Index: Yes/No
apd
To
1.The Principal Sub Judge, Tirunelveli,
2.The Principal District Munsif, Tirunelveli.
https://www.mhc.tn.gov.in/judis
K.GOVINDARAJAN THILAKAVADI
apd
and C.M.P.(MD).No.3624 of 2022
06.12.2023
https://www.mhc.tn.gov.in/judis
