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1994 DIGILAW 972 (MAD)

Velu Gounder and Others v. Kanna Gounder

1994-11-21

ARUNA JAGADEESAN

body1994
Judgment : By consent of both counsel, the civil revision petition itself is taken up for disposal. 2. The respondent had filed O.S.No.458 of 1964 on the file of the District Munsif’s Court, Arni, for declaration of his title and for recovery of possession. The said suit was decreed on 16. 1967. The respondent has taken out execution proceedings in E.P.No.618 of 1967. and the respondent took possession from the petitioner one of the items of the suit property on 30.7.1967, and the execution petition was dismissed on 30.8.1967 since the respondent did not pay batta in respect of another suit item. Thereafter on 16. 1977, the respondent filed E.P.No.178 of 1977 for recovery of the remaining item of the suit property, for which, the earlier execution petition was dismissed. The petitioners herein filed a suit in O.S.No.235 of 1977, praying for the cancellation of the decree in O.S.No.458 of 1964 and obtained an interim injunction restraining the respondent from interfering with their possession. Pursuant to the injunction order in I.A.No.954 of 1977 in O.S.No.235 of 1977, the E.P.No.178 of 1977 filed by the respond-ent was dismissed as infructuous. The suit O.S.No.235 of 1977 was dismissed, against which the Appeal A.S.No.38 of 1984 was filed by the petitioners and that was also dismissed. Thereafter the respondent filed the present E.P.No.126 of 1987 for recovery of the property pursuant to the decree in O.S.No.458 of 1964. The said Execution Petition was ordered and delivery was directed. Against the said order, the petitioners have filed the present revision. 3. The learned counsel for the petitioners contended that the executing court did not consider the objection with regard to the limitation correctly and properly and further the respondent is estopped from seeking possession, since they contend inO.S.No.235 of 1977 by way of defence that they are already in possession of the suit property. The learned counsel for the petitioner further contended that the lower court has proceeded on the basis that there was injunction in I.A.No.954 of 1977 in O.S.No.235 of 1977 and as such the respondent could not have proceeded that E.P.No.178 of 1977 and that the same has been dismissed earlier as infructuous. The learned counsel for the petitioner further contended that the lower court has proceeded on the basis that there was injunction in I.A.No.954 of 1977 in O.S.No.235 of 1977 and as such the respondent could not have proceeded that E.P.No.178 of 1977 and that the same has been dismissed earlier as infructuous. The reasoning of the court below is not sustainable in law because there is no stay of the operation of the decree against the respondent or there is no injunction against the respondent restraining him from executing the decree directly and as such the mere injunction sought for by the petitioners restraining the respondent from interfering with their possession will not amount to any prohibitory order against the respondent for executing the decree. For this proposition, the learned counsel for the petitioners relied upon two judgments, namely, Siraj Ul. Haq v. S.C.Board of Wakf, A.I.R. 1959 S.C. 198, Prem Raj v. Ram Charan, A.I.R. 1974 S.C.968. 4. The learned counsel for the respondent contended that E.P.No.178 of 1977 filed by the respondent was dismissed as infructuous on the earlier occasion only on the basis of the order of injunction obtained by the petitioner and as such it is not open to him now to contend by virtue of the order of injunction, the respondent was not prohibited from executing the decree and the present Execution Petition filed is only a continuation of the earlier execution proceeding and hence it is within the period of limitation. 5. I have carefully considered the points raised by the learned counsel for the petitioners and also perused the order of the court below. The court below has elaborately considered the points raised before it and found that the execution petition is in time and ordered delivery. 6. From the abovesaid facts, it is very clear that by filing E.P.No.618 of 1967, the respondent took delivery of one of the items of the suit properties and the second execution petition filed by him was dismissed pursuant to an order of injunction obtained by the petitioners. To appreciate the contention of the petitioners, it has to be seen as to whether inspite of the injunction obtained by the petitioners, the respondent is entitled to execute the decree for possession. To appreciate the contention of the petitioners, it has to be seen as to whether inspite of the injunction obtained by the petitioners, the respondent is entitled to execute the decree for possession. If the decree for possession is executed then automatically the petitioners possession would be disturbed which would be contrary to the injunction order obtained by the petitioners in I.A.No.954 of 1977 in O.S.No.235 of 1977. Hence, I am of the view that the petitioners had prevented the respondent from proceeding with the E.P.No.178 of 1977 and the same was dismissed on 30.6.1978. Thereafter the respondent has filed the present Execution Petition after the disposal of the appeal filed by the petitioners against the judgment and decree in O.S.No.235 of 1977. The Judgments cited by the petitioners has no application to the facts of the present case, since I find the present execution petition is only a continuation of the earlier proceedings and the petitioners are raising the technical plea only to protect the proceedings without any basis. Hence, the civil revision petition is dismissed. No costs.