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2004 DIGILAW 709 (MAD)

Sivasamy v. Raju Mudaliar and others

2004-04-27

T.V.MASILAMANI

body2004
ORDER: These Civil Revision Petition Nos.2607 to 2609 of 1996 have been filed as against the fair and decretal orders dated 11.4.1996 in the applications in E.A.Nos.465 of 1995, 577 of 1991 and 578 of 1991 in E.P.No.724 of 1982 in O.S.No.735 of 1974 on the file of the Principal District Munsif, Karur. E.A.No.577 of 1991 is the application to amend the prayer in E.A.No.550 of 1990 filed by the first respondent/third party herein. E.A.No.465 of 1995 is the application filed by the first respondent herein/third party to amend the main claim petition in the said application in E.A.No.577 of 1991. E.A.No.578 o0f 1991 is the application filed by the claimant/third party to amend the application in E.A.No.551 of 1990 and E.A.No.465 of 1995. 2. The revision petitioner in these revision petitions is the first respondent/first plaintiff in the impugned execution proceedings wherein the first respondent herein filed the execution applications under O.6, Rules 16 and 17 and Sec.151 of the Civil Procedure Code to amend the execution applications in E.A.Nos.465 of 1995, 577 of 1991 and 578 of 1991. The revision petitioner resisted the said applications by filing counter statements and after hearing both sides on the basis of the respective pleadings, the learned District Munsif allowed the amendments as prayed for and passed the impugned orders. Hence, the revisions. 3. the revision petitioner/first plaintiff while he was a minor aged 9 years filed through his next friend and maternal uncle, the suit along with the second plaintiff and separate possession of 9/16th share in the suit properties and the preliminary decree was passed on 27.10.1976 with reference to 2/8th share in the suit properties in favour of the plaintiffs with a direction regarding mesne profits to be ascertained in a separate possession under O.20, Rule 12 of the Civil Procedure Code. In pursuance of the preliminary decree for partition, a final decree was passed in favour of the revision petitioner/first plaintiff on 30.1.1981 in I.A.No.79 of 1980 in O.S.No.735 of 1974. 4. In pursuance of the preliminary decree for partition, a final decree was passed in favour of the revision petitioner/first plaintiff on 30.1.1981 in I.A.No.79 of 1980 in O.S.No.735 of 1974. 4. In the execution proceedings for delivery of the property initiated by the revision petitioner/first plaintiff in E.P.No.724 of 1982, the first respondent herein and another/third party filed the applications in E.A.No.550 of 1990, 551 of 1990 and 552 of 1990 under Secs.47 and 151 of the Civil Procedure code in respect of the suit first item of ‘A’ schedule property, pending disposal of the said applications, they filed the applications in E.A.No.577 of 1991, 578 of 1991, 565 of 1995 under O.6, Rules 16 and 17 and Sec.151, C.P.C. for amendment of the execution proceedings in E.P.No.724 of 1992 and the said applications were allowed after enquiry by the learned District Munsif. Hence, the revisions. 5. The learned counsel for the revision petitioner has argued at the outset that the impugned orders passed by the Executing Court are not maintainable in scope of Sec.47 of the Civil Procedure Code. He has also contended that for amending the execution proceedings in E.A.No.577 of 1991, an application was filed under Sec.47, C.P.C. for declaration that not only the first respondent herein/third party claimant, but also his predecessor in title have got title to the portion of the first item in the ‘A’ schedule property involved in the execution proceedings and that such an amendment seeking to set at naught the decree relating to that portion of the property itself had been allowed by the Executing Court which cannot go behind the decree and permit such an amendment in the claim applications. 6. Similarly, he has pointed out that the claimants in the said claim applications asserted title to the suit item No.1 in the ‘A’ schedule property and they have also filed a suit in O.S.No.661 of 1989 in respect of the said property alleged to have been purchased by them. Hence, he has urged that the impugned orders are not maintainable in law and are therefore liable to be set aside. 7. Hence, he has urged that the impugned orders are not maintainable in law and are therefore liable to be set aside. 7. Sec.47(1) of the Civil Procedure Code reads as follows: “Questions to be determined by the Court executing decree: All questions arising between the parties to the suit in which the decree was passed, for their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.” 8. In view of the said provisions of law, the first respondent who claims to have purchased the property from the 3rd respondent who was a party to the suit as well as to the execution proceedings cannot plead ignorance of the proceedings in the suit as well as in the execution proceedings for the simple reason that his predecessor in interest who was the first defendant in the suit was effectively represented by the counsel and also and taken part in the said proceedings. 9. Since the third party who has filed the application before the Executing Court in E.A.No.578 of 1991 claims that some extent of her property had been annexed to the suit first time of the ‘A’ schedule property while effecting delivery as per the decree. As has been rightly argued by the learned counsel for the petitioner herein, since she has no loco standi to maintain the applications under Sec.47 of the Civil Procedure Code, her application cannot stand for a moment’s scrutiny. Hence, the contention put forth in her applications has to be summarily rejected. On the contrary, the Executing Court has allowed the same without analysing the facts and circumstances as narrated above in the light of the provision of law. 10. It is well settled proposition of law that the Executing Court cannot go behind the decree and probe any claim of title to and possession of the property involved in the execution proceedings. On the contrary, the impugned orders and the affidavits and the petitions filed by third parties seeking amendment of the execution proceedings would indicate that the relief sought for exceeds the legal limits prescribed by Sec.47 of the Civil Procedure Code for the simple reason that they have virtually prayed for declaration of their title to and delivery of possession of the property described in the said applications. In view of such factual aspect of the matter, this Court is of the considered view that the learned District Munsif did not apply his mind with reference to the scope of the legal provisions under Sec.47, C.P.C. and therefore there is no other alternative except to set aside the same. 11. As has been rightly argued by the learned counsel for the revision petitioner, the records of the execution proceedings would disclose that the same had a chequered career from 30.1.1981, the date of passing of the final decree and therefore it goes without saying that the third parties have dragged on the execution proceedings in one way for the other. 12. For the reasons stated above, the civil revision petitions are allowed setting aside the impugned orders and the Executing Court is directed to dispose of the claim applications within three months from the date of furnishing the copy of this order and also terminate the execution proceedings within the time stipulated and report such disposal to the Registry. However, there will be no order as to costs.