Madras High Court
Selvam vs Muniappan on 31 July, 2023
C.M.P.(MD) No.5846 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.07.2023
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.M.P.(MD) No.5846 of 2023
in
C.R.P.(MD) SR. No.21256 of 2023
Selvam ... Petitioner
Vs.
1.Muniappan
Karuppiah (Died)
Anguchamy (Died)
2.Ponnuchamy
3.Bose
4.Chandra
5.Gnanavalli
6.Thamizharasi
7.Pothumponnu
8.Boopathy ... Respondents
Prayer in C.M.P.:- This Civil Miscellaneous Petition filed under Section 5 of
the Limitation Act, to condone the delay of 26 days in filing the above Civil
Revision Petition.
_____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 9
C.M.P.(MD) No.5846 of 2023
Prayer in C.R.P.:- The Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records relating to the impugned fair and
decreetal order dated 04.11.2022 made in E.A.No.17 of 2021 in E.P.No.17 of
2015 in O.S.No.161 of 2007 on the file of the District Munsif Court,
Sivagangai and set aside the same.
For Petitioner : Mr.R.Govindaraj
R1 : Party-in-person
For RR2, 3, 4, 6 & 8 : No appearance
*****
ORDER
This Civil Miscellaneous Petition has been filed by the petitioner to
condone the delay of 26 days in filing the above Civil Revision Petition.
2. The above Civil Revision Petition has been filed by the petitioner
against the fair and decreetal order dated 04.11.2022 passed by the District
Munsif Court, Sivagangai in E.A.No.17 of 2021 in E.P.No.17 of 2015 in
O.S.No.161 of 2007.
3. According to the petitioner, the petitioner filed an application under
Order 21 Rule 97 of the Code of Civil Procedure, 1908 which was dismissed
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
by the Executing Court without considering the objections made by the
petitioner.
4. The learned counsel appearing for the petitioner would submit that
the Executing Court ought to have seen that though the first
respondent/plaintiff has claimed the entire suit properties belonging to his
family, when those public utilities are available in certain portions, the parties
to the suit being family members of the first respondent and subsequent
purchaser, the entire property ought to have been surveyed and measured by a
senior bailiff along with Surveyor and Village Administrative Officer.
5. It is therefore submitted that the Executing Court without appreciating
the endeavour made by the petitioner to prevent miscarriage of justice in the
event of ordering delivery of possession, erroneously dismissed the application
filed by the petitioner vide order dated 04.11.2022, against which, the present
Civil Revision Petition has been filed.
6. On the other hand, the first respondent/plaintiff who appears as party-
in-person would submit that he filed the suit in O.S.No.161 of 2007 for
partition of the suit properties, and declaration of Sale Deed as null and void
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
and not binding on the first respondent/plaintiff and for mandatory injunction
to demolish the house constructed in the suit property and to hand over the
vacant possession of the suit properties. The first respondent/plaintiff would
further submit that the Trial Court has decreed the suit and ordered the suit
properties to be divided and allot 1/7th share to the first respondent/plaintiff and
granted relief of the mandatory injunction for demolition of the house
constructed in the portion allotted to the first respondent/plaintiff and also
granted permanent injunction from alienating and encumbering any part of the
suit parties to any third parties. However, the Trial Court has dismissed the
prayer for cancellation of Sale Deed.
7. Against the Judgment and Decree passed by the Trial Court, the
defendants preferred an appeal before the Sub Court, Devakottai in A.S.No.41
of 2010, whereas, the first respondent/plaintiff preferred an appeal in A.S.No.
42 of 2010. By a common Judgment and Decree dated 15.11.2010, the Sub
Court, Devakottai allowed A.S.No.42 of 2010 filed by the first
respondent/plaintiff and dismissed A.S.No.41 of 2010 filed by the defendants.
8. The defendants thereafter preferred the second appeal before this
Court in S.A.(MD) No.683 of 2011 against the Judgment and Decree dated
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
15.11.2010 passed by the Sub Court, Devakottai in A.S.Nos.41 & 42 of 2010.
The second appeal was also dismissed on 14.03.2012, thereby, the claim of the
first respondent/plaintiff was confirmed.
9. The first respondent/plaintiff thereafter filed Execution Petition before
the District Munsif Court, Sivagangai in E.P.No.17 of 2015. It is submitted that
the District Munsif Court, Sivagangai by its order dated 18.08.2015 directed to
hand over the vacant possession of the suit property to the first
respondent/plaintiff. It is further submitted that the petitioner was preventing
the first respondent/plaintiff from enjoying the fruits of the Judgments passed
by the Courts for various reasons and therefore, the first respondent/plaintiff
filed C.R.P.(MD) No.378 of 2021 for speedy disposal of E.P.No.17 of 2015.
The said C.R.P. was disposed of by this Court vide its order dated 05.03.2021
with direction to the District Munsif Court, Sivagangai to dispose the E.P.No.
17 of 2015, within a period of three months from the date of receipt of a copy
of that order.
10. The said E.P. is said to have been kept pending. Meanwhile, the
petitioner who is the third party filed an application under Order 21 Rule 97 of
the Code of Civil Procedure, 1908, in E.A.17 of 2021 in E.P.No.17 of 2015 in
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
O.S.No.161 of 2005 to record his objection and obstruction and to dismiss the
E.P. The said E.A. was dismissed by the Executing Court below vide its order
dated 04.11.2022, against which, the present Civil Revision Petition has been
filed by the petitioner/third party with a delay of 26 days.
11. The first respondent/plaintiff would further submit that no revision
will lie against the order passed by the Executing Court in E.A.17 of 2021 in
E.P.No.17 of 2015 in O.S.No.161 of 2005 and therefore, the present Civil
Revision Petition is not maintainable. In support of the contention of the
respondent/plaintiff, he referred to a decision of the Hon’ble Apex Court in the
case of S.Rajeswari Vs. S.N.Kulasekaran and others, (2004) 4 SCC 412, in
which case, it was held that “.... the High Court exceeded its jurisdiction in
entertaining a revision petition under Section 115 CPC against an order
passed in proceeding under Order 21 Rule 97 CPC, even if we treat the
application filed under Section 151 CPC to be an application under Order 21
Rule 97 CPC.”
12. Heard the arguments. Perused the records and the above decision
cited by the first respondent/plaintiff.
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
13. In view of the decision of the Hon’ble Apex Court in the case of
S.Rajeswari cited supra, it is clear that a revision cannot be entertained under
Section 115 of the Code of Civil Procedure, 1908 as against the order passed
by the Court in the application filed under Order 21 Rule 97 of Code of Civil
Procedure, 1908. A reference is made to the Paragraph No.13 of the decision
in S.Rajeswari cited supra which reads as under:-
“13.. . . . .Respondent 1 did not appeal to the High Court
and instead preferred a revision petition under Section 115
CPC. We have no doubt that in view of the provisions of
Order 21 Rule 103 CPC which provide for appeal against
the order passed by the executing court in such matters, no
revision could be entertained by the High Court against
that order in view of the clear prohibition contained in
Section 115(2) CPC, which in clear terms provides that the
High Court shall not under Section 115 vary or reverse
any decree or order against which an appeal lay either to
the High Court or to any other court subordinate thereto.
The High Court appears to have interfered with the order
of the executing court because it was under the impression
that a long drawn out litigation, perhaps engineered by the
judgment-debtor, would result in great injustice, and
therefore, if some relief could be granted by cutting short
the procedure of appeal, etc. the power under Section 115
could be exercised to do justice between the parties. In our
view, the High Court could not have acted in a manner
contrary to the express provision of Section 115(2) of the
Code of Civil Procedure. Since an appeal was provided
under Order 21 Rule 103 of the Code of Civil Procedure
which treated the order passed by the executing court as a
decree subject to the same conditions as to appeal against
such decree, a revision petition under Section 115 CPC
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
against such an order is not maintainable. We must,
therefore, hold that the High Court exceeded its
jurisdiction in entertaining a revision petition under
Section 115 CPC against an order passed in proceeding
under Order 21 Rule 97 CPC, even if we treat the
application filed under Section 151 CPC to be an
application under Order 21 Rule 97 CPC."
14. Applying the above dictum laid down by the Hon’ble Supreme
Court, the present Civil Revision Petition is made as not maintainable.
Therefore, this Civil Miscellaneous Petition filed for condonation of delay is
dismissed. Consequently, the present Civil Revision Petition is also dismissed
at the S.R. stage itself.
31.07.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
jen
To
The Judge,
District Munsif Court, Sivagangai.
_____________
https://www.mhc.tn.gov.in/judis
C.M.P.(MD) No.5846 of 2023
K.GOVINDARAJAN THILAKAVADI, J.
jen
C.M.P.(MD) No.5846 of 2023
in
C.R.P.(MD) SR. No.21256 of 2023
31.07.2023
_____________
https://www.mhc.tn.gov.in/judis
