P.Duraisamy vs V.Chandrasekar
2024 Latest Caselaw 17742 Mad

Citation : 2024 Latest Caselaw 17742 Mad
Judgement Date : 6 September, 2024

Madras High Court

P.Duraisamy vs V.Chandrasekar on 6 September, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                  C.R.P.No.531 of 2024



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 06.09.2024

                                                       CORAM :

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                C.R.P.No.531 of 2024
                                              and C.M.P.No.2599 of 2024

                P.Duraisamy                                                    ... Petitioner


                                                           Vs


                V.Chandrasekar                                                 ... Respondent

                PRAYER : Civil Revision Petition filed under Section 115 of Civil Procedure
                Code pleased to set aside the order dated 21.11.2023 passed in E.A.No.1 of 2023
                in E.P.No.42 of 2013 in O.S.No.368 of 2013 on the file of the Principal Sub-
                originate Judge, Tiruppur.



                                      For Petitioner   :   Mr.N.Nithianandam
                                      For Respondent :     Mr.Bharathkumar




                 1/8


https://www.mhc.tn.gov.in/judis
                                                                                      C.R.P.No.531 of 2024

                                                      ORDER

This Civil Revision Petition has been filed against the order dated

21.11.2023 passed in E.A.No.1 of 2023 in E.P.No.42 of 2013 in O.S.No.368 of

2013, on the file of the learned Principal Sub-originate Judge, Tiruppur, dismissing

the petition filed under Section 47 of CPC which was filed seeking to dismiss the

execution petition, as the respondent/decree holder is not entitled to seek the relief

of delivery of possession from the petitioner.

2. The petitioner is the 2nd judgment debtor. The respondent is the decree

holder. The petitioner had filed a petition in E.A.No.1 of 2023 stating that the the

3rd judgment debtor Thiru.P.Chinnaraj died on 20.06.2017, leaving behind his son

and four daughters as his legal heirs. After the death of the 3 rd judgment debtor, his

legal heir had been in joint possession and enjoyment of the petition mentioned

properties and the legal heirs of the 3rd judgement debtor are just and necessary

parties to the execution proceedings, but the decree holder had purposely failed to

implead them as parties in the execution proceedings. Further, only on 17.03.2023,

when the Court's Ameen had visited the petition mentioned property for taking

delivery of possession, the petitioner came to know about the present execution

proceedings. It was also contended that the petition mentioned properties are

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incorrect and no such properties are available for execution in any manner as

alleged in the execution petition and that the decree holder had suppressed all the

proceedings and obtained an order behind the back of the petitioner by filing an

illegal and vexatious petition. It was further contended that the petitioner had put

up a Ramar temple in the petition mentioned property about 40 years ago and the

petitioner has been in possession and enjoyment of the petition mentioned property

and though the decree was passed against three persons including the petitioner

herein, the petitioner was not added as a party in the main execution petition in

E.P.No.42 of 2013.

3. The respondent/decree holder had filed counter and in the counter it had

been stated that the petitioner is the 2nd defendant in O.S.No.368 of 1998 and that

the judgment and decree dated 27.03.2010 passed in O.S No.368 of 1998 was

confirmed in the appeal in A.S.No.97 of 2010 by judgment dated 03.08.2012 and

as per the decree in O.S.No.368 of 1998, the property is in possession and

enjoyment of the 1st respondent/1st defendant and the delivery is to be effected

only by the 1st respondent/1st defendant. After the order passed in the first appeal,

subsequently, the 1st defendant had filed a second appeal in S.A.No.66 of 2014

before this Court and the same was also dismissed on 14.02.2022, against which,

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no further steps were taken. It was also contended that no evidence had been let-in

by the petitioner herein to show that there was a Temple in the petition mentioned

property and he was in possession and enjoyment of the property. It was further

contended that the sale deed was executed by the Court as per the decree and

judgment passed in the year 2007 and that the executing Court cannot go behind

the decree. The said Kuppusamy who is the 1st respondent in the main E.P., had

executed a Power of Attorney in favour of the decree-holder on behalf of the

petitioner and one Chinnaraj in respect of the suit property and based on which, the

suit was filed in which, the petitioner and the said Chinnaraj were set ex-parte. The

executing Court, after hearing both sides, on finding that the 1st defendant

Kuppusamy is the power agent of the petitioner and the power agent is duty bound

to execute the sale deed in favour of the decree holder and also finding that the

petitioner had not filed any proof/documents to show the existence of the Temple,

had dismissed the petition, against which, the present revision has been filed by the

2nd defendant.

4. The learned counsel for the petitioner submitted that no notice was served

on the petitioner and the executing Court also did not take into consideration the

existence of the Temple in the petition mentioned property.

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5. Per contra, the learned counsel appearing for the respondent/decree holder

submitted that the suit was filed as early as in the year 1998, i.e. on 03.08.1998 and

decreed on 27.03.2010. Thereafter, the 1st defendant had filed A.S.No.97 of 2010

and the same was dismissed on 03.08.2012, against which, the 1st defendant had

preferred a second appeal in S.A.No.66 of 2014 and the same was also dismissed

by this Court on 14.02.2022. He further submitted that the petitioner filed the

obstruction petition without necessary proof and that the executing Court, on

finding that the petitioner had not produced any proof to show that there was a

Temple in the petition mentioned property and proper notice was issued to them at

every stage, had rightly dismissed the petition. Hence, he sought for the dismissal

of the present revision petition.

6. Heard both sides and perused the materials available on record.

7. It is seen that in the execution petition, the petitioner had examined

himself as P.W.1. and during cross examination, he had deposed as under;

"nkw;go tHf;F kw;Wk; nky;KiwaPL Fg;g[rhkpf;F kl;Lnk vjpuhf ,Ue;jJ vd;why; mJ gw;wp bjhpatpy;iy/ jhth kDit Fg;g[rhkp tHf;fwp"hplk; brhy;ypj;jhd; jhf;fy; bra;J kDit elj;Jfpnwd; vd;why; rhpjhd;/ kDr; brhj;jpy; Fg;g[rhkp vd;gth;jhd; RthjPdj;jpy; ,Ue;jhh; vd;why; rhpjhd;/ jhth

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kDr;;brhj;jpy; nfhapy; ,Ug;gjw;fhd Mtz';fis ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ kDr;brhj;jpy; nfhtpy; ,Ug;gjhy; RthjPdk; bfhLf;f KoahJ".

8. The executing Court, on finding that it had been admitted by the

petitioner that there was no Temple in the petition mentioned property and that one

Kuppusamy was in possession and enjoyment of the property and also taking note

of the fact that no documents were produced by the petitioner to show the

existence of the Temple, had dismissed the petition.

9. On hearing both sides and having gone through the records, this Court

does not find any illegality or infirmity in the order passed by the executing Court

and this Court finds no reason to interfere with the order passed by the executing

Court.

10. Therefore, this Civil Revision Petition is dismissed. Consequently,

connected Civil Miscellaneous Petition is closed. No costs.

06.09.2024