Madras High Court

Ameen Nawaz Khan vs C.V.Karunakaran (Deceased) on 17 October, 2025

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              Order reserved on : 10.10.2025                  Order pronounced on : 17.10.2025
                                                                 CORAM
                                   THE HONOURABLE MR JUSTICE P.B. BALAJI

                                                       CRP.No.3470 of 2025
                                                   & CMP.No.18819 of 2025


                     Ameen Nawaz Khan                                                        ... Petitioner

                                                                     Vs.

                     C.V.Karunakaran (Deceased)
                     1.P.A.Karpagavalli
                     2.C.K.Kirubhashankar
                     3.C.K.Ravishankar
                     4.C.Prabhashankari
                     Avathar Kaur Virdhi (Died)
                     5.Kulwanth Singh
                     F.Nagoor (Deceased)
                     6.Meera Begum
                     7.Musthafa
                     8.Majeeth Singh
                     9.Jasbeen Kavur                                                         ... Respondents


                     Prayer: Civil Revision Petition filed under Article 227 of Constitution of
                     India, to set aside the order dated 29.07.2025 passed in E.A.SR.No.7149 of
                     2025 in E.P.No.771 of 2010 on the file of the IX Assistant Judge, City Civil
                     Court, Chennai.


                     1/12




https://www.mhc.tn.gov.in/judis                   ( Uploaded on: 17/10/2025 08:16:13 pm )
                                        For Petitioner         : Mr.Uttam Joseph Cherriyan

                                        For Respondents : Mr.P.Sankara Narayanan for RR1 to 4
                                                          RR5 & 7 Died
                                                          R6 is not ready in notice
                                                          No appearance for RR8 & 9

                                                              ORDER

The petitioner is a third party, who is aggrieved by the dismissal of

his application under Order XXI Rule 97 of CPC, seeking to dismiss the

execution petition.

2.I have heard Mr.Uttam Joseph Cherriyan, learned counsel for the

petitioner and Mr.P.Sankara Narayanan, learned counsel for the respondents

1 to 4.

3.Mr.Uttam Joseph Cherriyan, learned counsel for the petitioner

would submit that the petitioner has been in bonafide occupation of the

premises right from 1990 onwards and he had no knowledge about the suit

proceedings. According to the learned counsel for the petitioner, the suit

property was in an abandoned state, when the petitioner occupied it in the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) year 1990 and started running a full fledged mechanic shed. The learned

counsel for the petitioner would further state that the petitioner has been

maintaining the property and is also paying property taxes for the same. He

would therefore contend that a fair opportunity ought to have been given by

the executing Court to enable the petitioner to put forth his contentions.

4.It is also the case of the counsel for the petitioner that the petitioner

is entitled to claim a right by adverse possession, since he has been in open,

continuous and peaceful enjoyment of the suit property for more than 30

years. He would also refer to the findings of the executing Court that the

description of the property in the property tax records does not match with

the schedule in the decree. He would therefore state that unless the Court

gives an opportunity to the petitioner, all these facts cannot be established.

He would further find fault with the executing Court dismissing the

application at the SR stage itself. It is also the further contention of the

counsel for the petitioner that when the petitioner's possession is admitted

and EP itself has been filed only in the year 2010, the Court ought to have

entertained the application under Order XXI Rule 97 of CPC. In support of

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) his contentions, the learned counsel for the petitioner would place reliance

on the decision of the Hon'ble Supreme Court in Ravinder Kaur Grewal

and othes Vs. Manjit Kaur and others, reported in AIR 2019 SC 3827 and

Shreenath and others Vs. Rajesh and others, reported in AIR 1998 SC 1827.

5.Per contra, Mr.P.Sankaran Narayanan, learned counsel for the

respondents 1 to 4 would first and foremost contend that the petitioner

cannot take mutually destructive pleas in his application under Order XXI

Rule 97 of CPC. According to the learned counsel for the respondents 1 to

4, the petitioner sets up independent right to the suit property in one breadth

and in another breadth, he claims right by adverse possession, contending

that both cannot go together. He would further state that even both the pleas

are to be considered independently, the petitioner is not entitled to succeed.

6.Insofar as the plea of adverse possession, the learned counsel for

the respondents 1 to 4 would submit that the documents, which were relied

on by the petitioners himself, did not establish the plea of adverse

possession since admittedly, the property tax receipts, that were filed on

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) behalf of the petitioner, are all in the name of the one of the judgment

debtors. He would therefore state that the petitioner is not entitled to put

forth the plea of adverse possession.

7.As regards the independent title asserted, the learned counsel for the

respondents 1 to 4 would submit that absolutely no evidence was adduced

by the petitioner and the affidavit in support of the application was also

silent in this regard. He would therefore pray for dismissal of the revision.

8.I have carefully considered the submissions advanced by the

learned counsel on either side.

9.As regards the request of the learned counsel for the petitioner for

being given an opportunity to put forth his contentions before the executing

Court, I find that though the executing Court has dismissed the E.A at the

SR stage, a detailed enquiry has been conducted and a fair and full

opportunity has been given to the petitioner to advance and put forth all his

contentions and in fact, even documents have been relied on by the

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) executing Court before the EA came to be rejected. Therefore, I do not find

any violation of principles of fair enquiry in the present case.

10.As regards the plea of adverse possession and the requirement of

the petitioner being given an opportunity as contended by the learned

counsel for the petitioner, as rightly pointed out by the counsel for the

respondents 1 to 4, in order to establish the plea of adverse possession, the

petitioner should show that the petitioner has been not only in peaceful

possession and enjoyment of the property without any interference, but such

enjoyment should be in his own rights.

11.As regards the arguments of the learned counsel for the petitioner

that there is a discrepancy in the description of the property, the executing

Court has only found that the description of the property in the possession

of the revision petitioner and the property tax receipts relied upon by him

are different from the property which is sought to be put to execution. As

long as the decree passed in favour of the respondents is legitimately sought

to be executed and there is no discrepancy with regard to the description of

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) the property between the decree and the execution petition, there is no

impediment for the executing Court to proceed with the execution petition

in accordance with law. The findings regarding misdescription of the

property and the discrepancies have been misconstrued by the revision

petitioner. Therefore, I am unable to countenance the argument of the

learned counsel for the petitioner in this regard.

12.Admittedly, all the documents, which have been relied on by the

petitioner, are not in the name of the petitioner, but only in the name of one

of the judgment debtors. Therefore, the petitioner, by his own standing, has

not been able to establish the plea of adverse possession. Even otherwise,

the case of the petitioner in the application under Order XXI Rule 97 of

CPC is that the suit property was abandoned and he occupied the suit

property. This plea would be sufficient to negate the contention of the

petitioner that he has an independent right to the property. The petitioner is

no less than a rank trespasser who has illegally occupied the private

property, which does not belong to the petitioner.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm )

13.In fact, I find that the judgment debtors have contested the

proceedings up to this Court and thereafter, the execution proceedings have

been instituted for recovering possession of the property. The executing

Court has rightly discussed all relevant facts and circumstances and come to

a finding that the petitioner has no right to resist execution and has

consequently rejected the application under Order XXI Rule 97 of CPC. I

do not find any illegality or impropriety in the findings arrived at by the

executing Court. There is no merit in the revision.

14.Coming to the decisions that have been relied on by the learned

counsel for the petitioner, in Shreenath's case (stated supra), the Hon'ble

Supreme Court only held that a person holding possession of an immovable

property in his own right can object in the execution proceedings by taking

out an application under Order XXI Rule 97 of CPC and he need not to wait

for dispossession, to enable him to participate in the execution proceedings.

Firstly, the revision petitioner has not made out any independent right to

object to the execution proceedings. Secondly, even though the application

has been dismissed at the unnumbered stage, full opportunity has been

https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/10/2025 08:16:13 pm ) given to the petitioner to put forth all contentions and objection. Therefore, I

do not see how this decision of the Hon'ble Supreme Court would even

apply to the facts of the present case.

15.In Ravinder Kaur Grewal's case (stated supra), the Hon'ble

Supreme Court held that a person in possession cannot be disturbed by

another person, except by due process of law and after lapse of 12 years

(adverse possession) even the owner's right to seek ejectment is lost and the

possessory owner acquires right, title or interest and that such person whose

right or interest is acquired by adverse possession can also use such right as

a sword, besides also as a shield, in defence. I have already discussed the

non-entitlement of the petitioner to claim adverse possession. Mere long and

continuous possession and enjoyment would not suffice and the petitioner

has not been able to asset his right or title to the subject property by