[Cites 1, Cited by 0]
Madras High Court
Venkata Narayanan vs R.Palani on 9 April, 2026
1
E.P No.98 of 2025
MASTER
09.04.2026
ORDER
1. This petition is filed by the decree holder/plaintiff under Order 21, Rule 35
of C.P.C to order delivery of vacant possession of the 1/3rd share of himself by metes
and bounds confirmed in the Judgment and decree dated 25.06.2025 as per the Advocate
Commissioner's report. It is the case of the petitioner that he had filed the above suit in
C.S No.872 of 2015 against the respondents for partition with respect to the property
viz., house ground and premises per Plot No.22, Door No.1, Krishna Rao Naidu Street,
T.Nagar, measuring an extent of 3 grounds i.e.7200 Sq.ft comprised in Survey
Nos.117/5, 118/2, Document No.12, T.Nagar Village, Mambalam, Guindy Taluk.
2. It is further stated that a preliminary decree dated 16.11.2023 was passed
wherein it was held that each of the plaintiff and defendants are entitled to 1/9 th share in
the suit property, as against which the respondents/Judgment debtors 6 to 8 preferred an
appeal in OSA No.98/2024 which was allowed by an Order dated 25.10.2024 wherein
this petitioner/decree holder was allotted 1/3rd share in the suit property. Thereafter, the
petitioner had filed an application in A.No.1999 of 2025 for passing a final decree which
was allowed by the Hon'ble High Court and final decree was passed by a Judgment and
decree dated 25.06.2025, wherein the plaintiff was allotted 1/3rd share i.e. Part-A to an
extent of 2400 Sq.ft (measuring 40 feet X 60 feet) morefully described in the schedule of
property mentioned in the execution petition and the Advocate Commissioner report and
sketch annexed in the final decree dated 25.06.2025 forms part and parcel of the decree.
Hence, the petitioner has filed this E.P to deliver vacant possession of the 1/3rd share
allotted to him by metes and bounds as confirmed in the Judgment and decree dated
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25.10.2024 and as per the final decree dated 25.06.2025.
3. Despite having entered his appearance the 1st Judgment Debtor has not
filed any counter and was set exparte on 18.06.2026. R2 to R4 were also set exparte on
the same day, R8 was set exparte on 05.11.2025.
4. The 6th and 7th respondents have filed their counter admitting the passing of
final decree dated 25.06.2025 in A.No.1999 of 2025 in C.S No.872 of 2015 but had
contented that one portion of the cell phone tower belonging to Indus Towers Limited is
erected in suit schedule property i.e. 'A' schedule allotted to the decree holder and
another portion erected in the 'B' schedule allotted to the 1st Judgment Debtor. Further, it
is stated that the decree holder has been collecting 1/3rd rents for the cell phone tower
and the other 1/3rd rents have been collected by the 1st judgment debtor and the another
1/3rd rents have been collected altogether by the Judgment debtors 6 to 8 and the said
tenancy is still in force. It is further stated that all of a sudden the Indus Tower stopped
payment of rent and as on date arrears of the cell phone tower comes to Rs.9,56,653/-.
Hence before ordering delivery in the above said execution petition the entire statutory
duties has to be fully cleared by the decree holder to the Greater Chennai Corporation
otherwise the Judgment Debtors 6 to 8 will be put to irreparable loss.
5. Heard both side counsels. Materials on record perused. It is seen that the
decree holder had filed a suit for partition in which a final decree was passed by a
Judgment and decree dated 25.06.2025 upon considering the Commissioner's report and
plan which forms part and parcel of the decree. One of the main contention raised by
the Judgment debtors 6 and 7 are that Cell Phone Tower belonging to Indus Towers is
erected in the suit schedule property which was allotted to the decree holder and 1st
Judgment debtor and admittedly 1/3rd of rents each were been collected by the decree
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holder, 1st Judgment debtor and Judgment debtors 6 to 8 respectively and the said
tenancy is still in force. Now all of a sudden Indus Tower stopped payment of rent and
as on date is in arrears of Rs.9,56,653/- and so before changing the location of the cell
phone tower from 'A' schedule to 'B' schedule of property the entire statutory dues of
tower tax for the cell phone tower has to be fully cleared by the decree holder to the
Greater Chennai Corporation. Further, the decree holder has sold his share of 'A'
schedule property by Document dated 12.08.2025 and registered the document on
13.08.2025 in Document No.2359/2025 at Sub Registrar Office, T.Nagar. In these
circumstances, delivery cannot be ordered in favour of the decree holder without
payment of the entire statutory dues of tower tax as a debt to the Greater Chennai
Corporation.
6. It is not the case of the Judgment debtors 6 and 7 that they have challenged
the final decree dated 25.06.2025 passed by the Hon'ble High Court. Furthermore, the 1st
Judgment debtor as against whom delivery has been claimed in this E.P has not filed his
counter and contested the execution proceedings despite having entered his appearance
through an Advocate. Moreover, in the present case, the property has already been
divided by metes and bounds through the Advocate Commissioner and the allotment has
been crystallised in the final decree based on the Advocate Commissioner report.
Hence, the grounds raised by the Judgment debtors 6 and 7 before this court are liable to
be rejected because as an executing court, this court cannot go beyond the decree.
Accordingly, this court hold that the decree holder is entitled to execute the final decree
which was passed on 26.05.2025 and is entitled to delivery of vacant possession of 1/3rd
share of himself by metes and bounds as confirmed in the Judgment and decree dated
25.06.2025.
In the result, this E.P is allowed. Delivery is ordered. Delivery by 12.06.2026.
Batta in a week.
https://www.mhc.tn.gov.in/judis
MASTER
https://www.mhc.tn.gov.in/judis
