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2006 DIGILAW 1320 (MAD)

Kala & Others v. S. K. Ganesan

2006-06-14

S.RAJESWARAN

body2006
Judgment :- (Revision Petition filed against the order dated 1.12.2004, passed in E.P.No.183/15999 in O.S.No.208/1980, on the file of the Additional Sub Judge, Pondicherry.) The petitioners/judgment debtors in E.P.No.183/1999 in O.S.No.208/1980 have filed the above Revision Petition challenging the order of the execution court dated 1.12.2004regarding the delivery and terminating execution petition. 2. O.S.No.208/1980 has been filed by the respondent herein against the revision petitioners and their father Sundaresekara Udayar. The trial court on 23.10.1980 directed the defendants in the suit to execute the sale deed of the property mentioned in the plaint schedule. An Appeal was filed in A.S.No.11/1992 and the same was dismissed on 11.8.1995.The Second Appeal in S.A.No.1403/1995 was also dismissed by this court on 16.4.1996.Thereafter E.P.No.101/1996 was filed by the respondent herein for execution of the sale deed in respect of plaint schedule property and the same was ordered. The sale deed was also executed. The present E.P.No.183/1999 was filed by the respondent for delivery of possession. In that execution proceedings, an application under Sec.47, CPC was filed by the revision petitioners and another and the same was dismissed on 28.11.2001.On 5.12.2001 the respondent herein took possession of the property on the basis of the order passed in the E.P. Against the order dated 28.11.2001, dismissing the Sec.47 application, the revision petitioners filed C.R.P.No.455/2002 and the same was dismissed on 5.11.2003.On 1.12.2004 after recording the delivery, the E.P., itself was terminated. Challenging the said order, the above revision petition has been filed. 3. Heard the learned counsel for the petitioners and the learned counsel for the respondent. I have also perused the documents filed in support of their submissions. 4. The learned counsel for the petitioners submitted that irrespective of the dismissal of the C.R.P.No.455/2002, the execution petition has got to be decided on merits and the court below has failed to note that one of the judgment debtors by name Lalitha died on 18.11.2003 and the order in the E.P. was passed on 1.12.2004 without taking note of the same and without passing any order to that effect would render the order dated 1.12.2004 a nullity. 5. I am unable to accept the contentions of the learned counsel for the petitioners. 6. 5. I am unable to accept the contentions of the learned counsel for the petitioners. 6. E.A.No.121/2000 was filed by all the revision petitioners herein and the deceased Lalitha under Sec.47 of C.P.C., praying to dismiss the E.P., as the decree is in executable on the ground that no such property existed as described by the decree holder in the Execution Petition.E.A.No.121/2000 was dismissed by the execution court and all the applicants in E.A.No.121/2000 filed C.R.P.No.455/2002 before this court and this court on 5.11.2003 dismissed the said revision petition as infructuous. In the order dated 5.11.2003, the learned Judge referred to the disposal of the Execution Petition itself on merits and taking possession of the property by the respondent herein on 5.12.2001.In such circumstances, there is nothing wrong in the order of the execution court recording the delivery and terminating the Execution Petition. 7. It is true that one of the judgment debtors died on 18.11.2003 as could be seen from the certificate of death filed in the typed set of papers. But the decree was executed and possession was already taken by the respondent herein on 5.12.2001 itself. Moreover, the E.P. was filed against the revision petitioners and the deceased Lalitha as the legal representatives of Sundarasekara Udayar. All the legal representative conjointly represented collective interest of the deceased person and the death of one of the legal representatives would not result in abatement. Therefore, I find no illegality nor infirmity in the order of the execution court. Hence the revision petition is dismissed. No costs.C.M.P.Nos.2574 and 2575 of 2005 are also dismissed.