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1996 DIGILAW 1002 (MAD)

P. K. Venkatraman v. Alamelu Ammal

1996-09-26

A.R.LAKSHMANAN

body1996
Judgment :- 1. The Civil Revision Petition is directed against the order of the learned District Munsif, Tiruchirapalli, in E.P. No. 739 of 1989 in O.S. No. 948 of 1973, allowing the said application for delivery filed by the respondent. The petitioner/defendant is the son of the respondent. The petitioners father Krishna Iyengar filed the suit O.S. No. 948 of 1973 on the file of the Subordinate Judge, Tiruchirapalli, for possession against the petitioner and the said suit was decreed in terms of the joint endorsement. The joint endorsement as incorporated in the decree dated 24-6-1976 in O.S. No. 948 of 1973 reads thus: “The Court doth order and decree that the defendant do put the plaintiff in possession of the suit property and that the parties of the suit property do bear the costs of this suit. It is also ordered and decreed that the defendant do continue to live in the suit property for two years from this date, that he shall continue in his possession of the suit property even afterwards, if he, the defendant, does not pick up quarrel with the plaintiff; that the plaintiff be at liberty to execute the decree for possession if the defendant were to pick up quarrel with the plaintiff.” 2. The petitioner contends that as per the terms of the decree, he has been residing in the suit property and has also effected improvements and has further put up construction worth over Rs. 1 lakh. He has been in possession of the property in his own right as an owner and has effected substantial improvements. The petitioners father died on 9-1-1989 and immediately on his death, the respondent, who is the mother of the petitioner, sought to execute the above decree on the ground that she is the only legal representative of the petitioners father and that after her husbands death, the petitioner picked up frequent disputes and quarrels with her and therefore, she is entitled to put the decree in execution and accordingly, she filed E.P. No. 739 of 1989. 3. The application was resisted by the petitioner inter alia on the ground that the Execution Petition is beyond the period of limitation prescribed under the Limitation Act and as per the joint endorsement, the respondent is not entitled to any relief. 3. The application was resisted by the petitioner inter alia on the ground that the Execution Petition is beyond the period of limitation prescribed under the Limitation Act and as per the joint endorsement, the respondent is not entitled to any relief. Further, it is contended that the respondent was not entitled to execute the decree and that the decree contemplates a quarrel only with the plaintiff Krishna Iyengar and not with the respondent. Therefore, the petitioner prayed for the dismissal of the Execution petition. 4. The learned District Munsif allowed the Execution Petition, against which the present revision has been filed by the petitioner/defendant. It is contended by Mr. S. Parthasarathi, learned counsel for the petitioner, that the court below has not considered the plea raised by the petitioner regarding the non-executability of the decree on the ground that the decree contemplates a quarrel with the plaintiff and not with the respondent herein. 5. I have gone through the pleadings and also the joint endorsement made by the parties in the suit and the impugned order of the court below. Admittedly, the respondent is not a party to the suit and the decree is only a personal decree and therefore, as rightly pointed out by Mr. S. Parthasarathi, the decree will not ensure to the benefit of the respondent after the lifetime of the decree-holder viz., the father of the petitioner. However, the court below has passed the impugned order on 10-9-1991 directing delivery of possession by 27-9-1991. Since the petitioner was under threat of dispossession, he has filed the present revision. 6. The joint endorsement made in the suit specifically provides that the petitioner herein (defendant in the suit) is entitled to continue to live in the suit property for two years from 24-7-1976 and he shall also continue in possession of the suit property even afterwards if the defendant/petitioner herein does not pick up quarrel with the plaintiff Krishna Iyengar (father of the petitioner), and that the plaintiff was at liberty to execute the decree for possession if the petitioner were to pick up quarrel with the plaintiff. In my opinion, the respondent has no right to execute the decree, which was passed as per the joint endorsement made by the plaintiff and the defendant in O.S. No. 948 of 1973. In my opinion, the respondent has no right to execute the decree, which was passed as per the joint endorsement made by the plaintiff and the defendant in O.S. No. 948 of 1973. Therefore, the respondent cannot come on record as the sole legal representative of the deceased plaintiff Krishna Iyengar. The purport of the joint endorsement indisputably goes to show that the respondent has no right to execute the decree because it contemplates quarrel only with the plaintiff and not with the present respondent. Therefore, in my opinion, there is no cause of action for the respondent to file the Execution petition or to execute the decree pursuant to the joint endorsement made by the parties in the suit and the decree passed thereon. Further, as rightly pointed out by the learned counsel for the petitioner, the decree itself is in executable since the Execution Petition has been filed 12 years after the decree. Above all, the decree obtained by the plaintiff against the petitioner herein is a personal decree and therefore, it will not survive after the lifetime of the decree holder and therefore, the present respondent cannot execute the decree since the decree clearly stipulates a quarrel by the petitioner herein with the plaintiff only. When the respondent is not a party to the suit, she cannot execute the decree passed on the basis of the joint endorsement, which will ensure only to the benefit of the plaintiff Krishna Iyengar and to none else. 7. For the foregoing reason, the Civil Revision Petition is allowed and the impugned order is set aside. No costs. Consequently, C.M.P. No. 12644 of 1991 is dismissed as no longer necessary.