[Cites 7, Cited by 0]
Madras High Court
Shanthi vs The South Arcot Diocesan Corporation on 9 January, 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 01.12.2025 Order pronounced on : 09.01.2026
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.No.4241 of 2024
& CMP.No.23609 of 2024
Shanthi ... Petitioner
Vs.
The South Arcot Diocesan Corporation
Represented by its Secretary,
Fr.L.A.Arulpushpam,
St.Agnes Seminary,
No.4, Beach Road, Cuddalore – 1. ... Respondent
Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside
the decreetal and fair order in E.P.No.4086 of 2014 passed by the X
Assistant City Civil Court, Chennai dated 12.07.2024.
For Petitioner : Mr.R.Thiagarajan
for Mr.R.Muthukumar
For Respondent : Mr.M.Edward Stanley
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ORDER
The judgment debtor, who has been directed to surrender possession,
in and by an order dated 12.07.2024 in EP.No.4086 of 2014, is the revision
petitioner.
2.I have heard Mr.R.Thiagarajan, learned counsel for
Mr.R.Muthukumar, learned counsel for the revision petitioner and
Mr.M.Edward Stanley, learned counsel for the respondent.
3.Mr.R.Thiagarajan, learned counsel appearing for the revision
petitioner would submit that the executability of the decree passed by the
trial Court is under challenge, especially, since the suit property has not been
properly identified. Inviting my attention to the decree, as well as the
schedule in the EP, the learned counsel for the petitioner would contend that
the description of the property does not satisfy the mandate of Order VII
Rule 3 of CPC. He would rely on the decision of the Hon'ble Supreme Court
in Civil Appeal No. 9941 of 2016 dated 03.01.2024 to fortify his contention
that when there is no proper description of an immovable property, the
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decree cannot be executed. He would also rely on the decision of the
Hon'ble Supreme Court in Mahadev P.Kambekar (Dead) through legal
representatives Vs. Shree Krishna Woolen Mills Private Limited, reported in
(2020) 14 SCC 505, where the Hon'ble Supreme Court held that the parties
are entitled to raise factual issues, such as, how much area has been leased
out, how much area is outside the lease, who are the owners of the leased
area and the areas adjacent to the leased areas and all other incidental
questions can be agitated before the competent Court.
4.Per contra, Mr.M.Edward Stanley, learned counsel appearing for the
respondent would submit that the respondent is a non-profit Company under
the Indian Companies Act and the revision petitioner occupies one specific
shop portion at Door No.1, Smith Lane, Anna Salai, Chennai -2. There are
five shop portions in the said property, one amongst which was let out to the
predecessor in interest of the revision petitioner. He would further state that
against all tenants, eviction proceedings have been initiated and three
tenants have already been vacated. He would further state that the tenants
are colluding amongst themselves, by setting up frivolous defence and
obstacles to defeat the legitimate rights of the respondent, the decree holder.
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5.In this regard, the learned counsel for the respondent has taken me
through the various applications filed under Section 47 of CPC, the
revisions before this Court, as well as the adverse orders passed against the
tenants upto the Hon'ble Supreme Court as well. He would further state that
even the application filed by the revision petitioner under Section 47 of CPC
has been dismissed and the challenge to the same by way of CRP.No.2375
of 2024 was also unsuccessful, with the petitioner choosing to withdraw the
said revision, pending the EP proceedings.
6.The learned counsel for the respondent would also invite my
attention to E.A.No.4 of 2024, which was filed by one Sudharsan, claiming
to be in occupation of the suit property, which is claimed to be in the
occupation of the revision petitioner as well. The said E.A.No.4 of 2024 has
been dismissed, as against which, an appeal appears to have been preferred
by the said obstructor. He would also invite my attention to the revision
filed by the said Sudharsaan, who is also a tenant in respect of another shop
portion, which came to be dismissed by this Court and the SLP before the
Hon'ble Supreme Court was also dismissed.
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7.It is therefore the contention of the learned counsel for the
respondent that the revision petitioner is only attempting to protract the
proceedings, by throwing up some objection or the other. He would further
state that with regard to the identity of the property, it is only a dispute
between the landlord and the tenant and it is not a title suit where the strict
rule of proper and adequate description of the property is required. He
would also state that this contention has already been raised by the revision
petitioner in the Section 47 petition as well and therefore, it is not open to
the revision petitioner to re-agitate the very same issue in the main execution
petition. He would therefore pray for the revision being dismissed.
8.I have carefully considered the submissions advanced by the learned
counsel on either side. I have also gone through the impugned order as well
as the decisions on which, the learned counsel for the petitioner has placed
reliance on.
9.The petitioner does not dispute the fact that he is a tenant under the
respondent/plaintiff. Admittedly, the petitioner has suffered a decree in
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O.S.No.1288 of 2009 and the same has become final. One Kothandaraman,
as proprietor of M/s.Raman Turning Works was the original lessee under the
respondent/decree holder. Subsequent to his demise, his legal heirs have
been impleaded and in fact, the decree dated 09.10.2013 in the suit came to
be passed only against the legal representatives, including the present
revision petitioner. In order to execute the decree, E.P.No.4086 of 2014 has
been filed.
10.No doubt, in the decree as well as in the schedule to the execution
petition, the respondent has described the property as “a portion of the
premises at Door No.1, Smith Lane, Mount Road, Chennai – 2”. There is no
mention of boundaries or survey numbers. The sister of the revision
petitioner, by name, Gomathi filed an application under Section 47 of CPC.
The said application was taken out only to canvas the very same ground that
the property has not been described properly. The said application was
dismissed by the executing Court and the sister of the revision petitioner
filed CRP.NPD.No.463 of 2018. This Court, finding that the issue relating
to identity of property has nothing to do with the execution or discharge or
satisfaction of the decree, held that the issue cannot be raised under Section
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47 of CPC and therefore, the dismissal of the said application by the
executing Court did not warrant interference in revision.
11.The revision petitioner herself filed E.A.No.311 of 2018 to set
aside the ex-parte order dated 19.01.2015 passed against her, invoking Order
XXI Rule 106(3) of CPC. The said application was dismissed by order dated
16.08.2022. The same was challenged before this Court in CRP.No.2850 of
2022 and by order dated 09.10.2023, this Court allowed the revision
petition, directing the executing Court to give an opportunity to the revision
petitioner to defend the execution proceedings, with a direction to dispose of
the EP within a period of four months. The revision petitioner thereafter
took out an application in E.A.SR.No.6892 of 2024 under Section 47 of
CPC. In the said application also, the petitioner claimed that the description
of the property has not been property given in the suit, as well as in the
decree and therefore, the decree is not executable. Reliance was also placed
on the mandate of Order VII Rule 3 of CPC. The said application came to be
dismissed even at the SR stage, in and by a detailed and well considered
order, finding that the revision petitioner was only filing frivolous
applications to thwart the rights of the decree holder from enjoying the fruits
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of the decree.
13.The very same contentions have been subsequently raised in the
counter affidavit filed by the revision petitioner in the main EP. Having
already agitated these issues up to this Court and again by way of a Section
47 application before the executing Court, the petitioner cannot be permitted
to once again canvass the same issue of identity of the property. No doubt,
the Hon'ble Supreme Court has held in Mary Pushpam Vs. Telvi
Curusumary, reported in 2024 INSC 8, that in a suit for possession, the
property has to be described with accuracy, with details of measurements
and boundaries and when the said requirements are found missing, then the
suit is liable to be dismissed on the ground of identifiability. I do not see this
decision applying to the facts of the present case. The facts before the
Hon'ble Supreme Court related to a title dispute, where the plaintiff had
based her claim that she had purchased 8 cents of an open piece of land and
the defendant has raised a construction over adjoining land and in the said
process, had trespassed into a portion of the property belonging to the
plaintiff. In such circumstances, the lack of identity of the property was held
to be fatal by the Hon'ble Supreme Court.
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14.It is not the case of the revision petitioner herself that she is not a
tenant in respect of the shop portion, which was originally let out to her
father. The property is forming part of a larger extent and there are other
shops, in respect of which, different tenants have been occupying their
respective portions and most of them have already been evicted. It is not the
case of the revision petitioner or the other legal heirs that the property,
which is subject matter of the dispute and is sought to be recovered from
them is not belonging to the respondent or that the revision petitioner is
occupying some other property, having an independent right or claim over
the same. In such circumstances, I do not see how improper description of
the property can be fatal to the case of the landlords.
15.In fact, the very same issue of identity of the property was raised
by the petitioner's sister, Gomathi in Section 47 petition. The said petition
was dismissed by the executing Court and the order was also confirmed by
this Court. The petitioner herself independently filed an application under
Section 47 of CPC and the same has also been dismissed. The question of
identity of the property was also raised in the said Section 47 petition filed
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by the petitioner herself and also her sister, Gomathi.
16.Even in E.A.No.4 of 2024 filed in the present execution
proceedings, the third party, who is another tenant having an independent
shop portion, sought to scuttle the respondent's rights. After contest, the said
application under Order XXI Rule 101 of CPC was also dismissed by the
Court. No doubt, the said order has been challenged by the said third party
obstructor, by way of preferring an appeal, which is admittedly pending in
A.S.No.216 of 2025 before the XVII Additional City Civil Court, Chennai.
The very same person, who has objected in the present execution petition,
insofar his shop portion is concerned, suffered a decree and in fact, pending
his first appeal, he filed an application for appointment of an Advocate
Commissioner, where his specific contention that the properties have not
been described with measurements and boundaries, as mandated under
Order VII Rule 3 of CPC was also raised. The said application was
dismissed by the First Appellate Court. The revision filed by the said
obstructor, K.Sudharsan was dismissed by this Court in CRP.No.1680 of
2021, where this Court held that the requirement of mandate of Order VII
Rule 3 of CPC would not apply to a tenant and the shop portions are easily
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identifiable and the application for appointment of an Advocate
Commissioner only to drag on the proceedings.
17.The order passed by this Court has been challenged before the
Hon'ble Supreme Court as well and the SLP came to be dismissed even at
the delay stage, holding that there is no reason to interfere with the order
passed by this Court. In the light of the above, it is not open to one tenant
after the other to raise the very same issue of identity of the property, which
is clearly an attempt to defeat the legitimate rights of the owner of the
property, namely the respondent herein. In the light of the above, I do not
see any perversity or infirmity in the order of the executing Court, allowing
the execution petition and directing the petitioner to deliver possession to
the respondent.
18.In fine, the Civil Revision Petition is dismissed. The petitioner
shall vacate and hand over vacant possession on or before 28.02.2026. No
costs. Connected Civil Miscellaneous Petition is closed.
09.01.2026
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
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Index : Yes / No
ata
To
The X Assistant City Civil Court, Chennai.
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P.B. BALAJI,J.
ata
Pre-delivery order made in
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09.01.2026
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