Madras High Court
K.Ekambaram vs G.Gandhimathi on 21 September, 2023
C.R.P.No.1583 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.09.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
C.R.P.No.1583 of 2013
K.Ekambaram ...Petitioner
Vs.
G.Gandhimathi ...Respondent
Prayer: Petition filed under Article 227 of the Constitution of India as
against the Fair and Decreetal Order dated 28.02.2013 made in E.A.No.853 of
2013 in E.P.No.4411 of 2011 in O.S.No.1208 of 1996 on the file of IX
Assistant City City Court, Chennai.
For Petitioner : Mr.G.Thangavel
For Respondent : Mrs.R.K.Sekina Reshma
ORDER
The Judgment debtor in O.S.No.1208 of 1996 is the Civil Revision
Petitioner. This case has a chequered history.
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C.R.P.No.1583 of 2013
2. For the sake of convenience, the parties will be referred to as decree
holder and judgment debtor.
3. E.A.No.853 of 2011 is an application filed by the judgment debtor to
remove the lock unlawfully put up on 18.02.2013 in the residential property
instead of 100 sq. ft of cattle shed kept vacant separately, by violating the
specific directions of the Executing Court, in Execution Petition in
E.P.No.4411 of 2011.
4. One K. Ekambaram, the judgment debtor filed O.S.No.4449 of 1995.
His specific case is that he has been residing in the suit schedule mentioned
property as a tenant. He claimed that the respondent Gandhimathi and the
second defendant, Gnanaprakasam were attempting to forcibly dispossess
Ekambaram from the suit schedule property. The suit schedule property is the
house property in Door No.l6, Dharma Raja Koil Street, Chintadripet, Madras
– 2. The boundaries of the property are on the east by No.17, Dharma Raja
Koil Street, South by Dharmaraja Koil Street, west by No.15, Dharmaraja Koil
Street and north by Samy Naicken Street.
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C.R.P.No.1583 of 2013
5. The said suit having been filed in the year 1995 and since the plaintiff
was in the possession of the property on the relevant date, the decree for
injunction was granted on 21.09.2004. As per the decree, Gandhimathi and
Gnanaprakasam were restrained by an order of permanent injunction not to
interfere with the possession of Ekambaram, unless through due process of
law. The decree in O.S.No.4449 of 1995 was appealed by Gandhimathi and
Gnanaprakasam before the Principal Judge, City Civil Court, Madras. This
appeal suit in A.S.No.457 of 2004 was dismissed on 04.02.2005. In other
words, the possession of Ekambaram was protected till he is dispossessed in
accordance with law.
6. Facing the plaint in O.S.No.4449 of 1995, Gandhimathi decided to
file a suit in O.S.No.1208 of 1996. In this suit, the schedule of property is a
portion of the property bearing Door No.16, Dharmaraja Koil Street,
Chintadripet, Chenani – 2, being dilapidated cattle shed with tin sheet roof
measuring 100 sq. ft, bounded on the south by Dharmaraja Koil Street and
east, west and north by the other properties of the plaintiff. The suit ended in
an exparte decree on 03.09.1997. To set aside the exparte decree, an
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C.R.P.No.1583 of 2013
application was filed which was dismissed. Challenging the same, an appeal
was preferred in CMA.No.90 of 2003 which was also dismissed on
30.09.2003. Challenging the dismissal of the application under order 9 Rule
13 as confirmed by the Appellate Court, a Civil Revision Petition was
preferred before this Court in C.R.P.No.3099 of 2000. That revision also
ended in dismissal on 08.09.2004. In other words, the efforts of Ekambaram to
set aside the exparte decree dated 03.09.1997 ended in futility.
7. In order to take possession of the property that had been decreed, an
Execution Petition was filed in E.P.No.4411 of 2011. In the said Execution
Petition, the learned Executing Judge passed an order directing the court
bailiff to deliver vacant possession of the suit property which is a tin sheet
roofed cattle shed in dilapidated condition being portion of the premises
bearing Door No.16, Dharma Raja Koil Street, Chinthadripet, Chenani – 2
measuring about 100 sq. ft. The Executing Court was careful to direct the
possession to be taken after taking the help of the Government surveyor and
after measuring and locating the property. This order is on challenge before
me.
8. Learned counsel for the petitioner disputed the identity and stated
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C.R.P.No.1583 of 2013
that he has the benefit of the decree in O.S.No.4449 of 1995 and A.S.No.457
of 2004 and also that, he has been in possession and enjoyment of the
property. Apart from that, he would state that the decree is only for 100 sq. ft.,
and therefore, the Executing Court cannot exceed the same.
9. Mrs. Sekina Reshma, learned counsel appearing for the decree holder
would submit that there is no mistake committed by the Executing Court. She
would submit that the Executing Court cannot go behind the decree and as per
the orders of the Court, delivery was taken in E.P.No.4411 of 2011.
10. I have carefully considered the arguments on either side and perused
the records.
11. The schedule of the property in O.S.No.1208 of 1996 would show
that the plaintiff had specifically given the boundaries of the property that had
been in occupation of Ekambaram, the judgment debtor. It is not as if the
entire extent was mentioned as 100 sq. ft., but a reading of the schedule shows
that the dilapidated cattle shed was to an extent of 100 sq. ft. Apart from this
extent, the plaintiff has given specifically the boundaries to the property.
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C.R.P.No.1583 of 2013
12. It is a settled position of law where there is a dispute with respect to
the extent and the boundaries, the boundaries of the property will prevail over
the extent. Apart from that, the learned Executing Judge has appointed a
surveyor for the purpose of identifying the property before handing over of
possession to the decree holder.
13. I also recollect the principle that an Executing Court cannot go
behind the decree and it is bound to execute the decree as it stands. In the
present case, the Executing Court has also not only been cautious, but has
been abundantly cautious, in order to ensure that the decree is executed as it
stands.
14. I do not find any error or irregularity, since what has been handed
over to the decree holder is only as per the decree. If there is a dispute
between the boundary and the extent, the boundaries will always prevail. In
the light of the above, I do not find any merit in CRP.No.l583 of 2013 and the
same is dismissed. No costs.
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Index : Yes/No
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C.R.P.No.1583 of 2013
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
To
The IX Assistant City City Court, Chennai.
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C.R.P.No.1583 of 2013
V. LAKSHMINARAYANAN, J.
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C.R.P.No.1583 of 2013
21.09.2023
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