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2007 DIGILAW 1803 (MAD)

G. A. Stanley Jones & Another v. Poornima S. Mentan & Another

2007-06-18

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to the order of the Principal District Munsif, Erode made in E.P.No.15 of 2004 in O.S.No.2931 of 1981. 2. The court heard the learned counsel on either side. 3. It was a suit filed for mandatory injunction, which was filed in the year 1981. Aggrieved over the decree granted by the Court of original jurisdiction, the defendant took on appeal. There also defence plea was rejected, culminating in second appeal, where the decree of the courts below affirmed. Execution Petition was filed for executing the mandatory injunction. In the counter filed by the petitioner/ judgment debtor, it is stated that there is a tiled house measuring 30 x 10 which was never mentioned in the course of proceedings in the suit or decree. Under the circumstances, it is not the property which is sought to be executed and thus it is a different one, as such, decree could not be executed. This contention was rightly rejected by the learned District Munsif stating that the existence of the property, viz., a tiled house, had never mentioned in the course of the proceedings before the Court, as it was raised subsequently, when the matter was in the Appellate forum and even if the property was available, it should be removed by court of law. It was also observed by the Appellate Court that such a plea that there was a tiled house measuring 30 x 10 in the suit property, and as such, the suit decree and Execution Petition are not identical, cannot be countenanced. The learned District Munsif, Erode also rejected the said contention put forth by the petitioners herein. 4. Now the same contention is reiterated before this Court. The Court is unable to see any merit in the contention and it was rightly rejected by the lower court. Hence, the CRP does not carry any merit. Hence, the CRP is dismissed. No costs. Consequently, connected MP is also dismissed.