Madras High Court
Kamaraj vs Ganapathy (Died) on 21 July, 2023
C.R.P.(MD)No.610 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.07.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(MD)No.610 of 2014
and
M.P.(MD)Nos.1 and 2 of 2014
Kamaraj ....Petitioner
Vs
1.Ganapathy (Died)
2.Mallika ...Respondents
(Second respondent was impleaded as legal heir of the first respondent
vide order of this Court, dated 30.03.2023 in C.M.P.(MD)Nos.1418 to
1420 of 2021)
PRAYER: The Civil Revision Petition has been filed under Section 115 of
Code of Civil Procedure, to set aside the fair and decreetal order, dated
19.09.2013 passed in E.A.No.42 of 2011 in O.S.No.82 of 2000 on the file
of the Principal District Munsif Court, Kumbakonam.
For Petitioner : Ms.S.Vijaya Shanthi
R1 : Died
For R2 : Mr.S.Prabhu
*****
1/7
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.610 of 2014
ORDER
The present Civil Revision Petition has been filed challenging an
order passed by the Executing Court directing police protection to the
decree holder to protect his possession of the property pursuant to a decree
for permanent injunction.
2.The first respondent herein had filed O.S.No.82 of 2000 on the
file of the Principal District Munsif Court, Kumbakonam, for the relief of
permanent injunction. The said suit was dismissed by the Trial Court. The
plaintiff had filed A.S.No.91 of 2002 on the file of the Additional Sub
Court, Kumbakonam. The first appellate Court was pleased to reverse the
judgment and decree and decreed the suit, as prayed for.
3.The decree holder had filed E.A.No.42 of 2011 before the
Principal District Munsif Court, Kumbakonam, under Section 151 CPC
alleging that the judgment debtor in violation of the permanent injunction,
is causing disturbance to him and sought for police protection. The
revision petitioner herein, as respondent, had filed a counter contending
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C.R.P.(MD)No.610 of 2014
that the decree holder is not in possession of the property, but on the other
hand, the judgment debtor continuous to be in possession of the property
in the capacity of a cultivating tenant. The defendant had also placed on
record an application submitted by him for registering himself as a
cultivating tenant.
4.The learned Principal District Munsif, Kumbakonam, after
considering the submissions made on either side, arrived at a finding that
the judgment debtor has not challenged the judgement and decree passed
in A.S.No.91 of 2002 and therefore, he cannot interfere in the possession
of the property and police protection was ordered. Challenging the said
order, the present Civil Revision Petition has been filed by the judgment
debtor.
5.The learned Counsel for the revision petitioner had contended
that the petitioner had taken steps to file a second appeal challenging the
judgment and decree in A.S.No.91 of 2002 before this Court. She further
contended that the decree holder was never in possession and enjoyment of
the property and he has not filed any document to establish his possession
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C.R.P.(MD)No.610 of 2014
over the property. She further contended that the revision petitioner has
filed R.D.R.No.16 of 2010 for the relief of declaring himself as a
cultivating tenant and the said application is pending before the Revenue
Divisional Officer. Therefore, the Executing Court ought not to have
ordered police protection without ascertaining who is in possession of the
property.
6.Per contra, the learned Counsel appearing for the
respondent/decree holder had contended that the decree in A.S.No.91 of
2002 was passed on 20.01.2003 by the Additional Subordinate Court,
Kumbakonam. Though twenty years have elapsed, so far no second appeal
has been filed by the judgment debtor. He further contended that the
revision petitioner is often causing disturbance to his possession and
therefore, he was constrained to file a petition under Section 151 of CPC.
He further contended that prior to the filing of E.A.No.42 of 2011, the
decree holder had earlier filed E.A.No.67 of 2005 seeking police
protection and the same was allowed. The said order was not challenged
by the judgment debtor. Hence, he prayed for dismissal of this petition.
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C.R.P.(MD)No.610 of 2014
7.I have carefully considered the submissions made on either side
and perused the records.
8.There is no dispute that the revision petitioner has suffered a
decree for permanent injunction by judgment and decree dated 20.01.2003
in A.S.No.91 of 2002 on the file of the Additional Subordinate Court,
Kumbakonam. Though it is contended on the side of the revision
petitioner that a second appeal has been filed, so far it has not seen the
light of the day. The decree holder alleging disturbance to his possession
in violation of the injunction decree had earlier filed EA.No.67 of 2005
seeking police protection and the same has also been ordered. The said
order has not been challenged by the judgment debtor.
9.Alleging violation for the second time, the present E.A.No.43 of
2011 has been filed and allowed by the Executing Court on 19.09.2013.
Though it is contended on the side of the revision petitioner that some
steps have been taken to record himself as a cultivating tenant, so far no
order has been passed by the revenue authorities. Therefore, at this point
of time, there are no grounds to interfere with the order of the Executing
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C.R.P.(MD)No.610 of 2014
Court in directing police protection.
10.The Civil Revision Petition lacks merits and stands dismissed.
No costs. Consequently, connected miscellaneous petitions are closed.
21.07.2023
Index : Yes/No
Internet : Yes/No
cmr
To
1.The Principal District Munsif, Kumbakonam.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
R.VIJAYAKUMAR, J.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.610 of 2014
cmr
C.R.P.(MD).No.610 of 2014
21.07.2023
https://www.mhc.tn.gov.in/judis
