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2007 DIGILAW 676 (MAD)

Selvam v. Radjarathinam & Others

2007-02-23

R.BANUMATHI

body2007
Judgment :- Challenge in this revision is the Order of delivery of possession in E.P.No.53/1999. Revision Petitioner, son of the second Defendant, is the third person to the suit O.S.No.1031/1993. 2. Respondents/Plaintiffs filed O.S.No.1031/1993 for declaration that they are the absolute owners of the suit property; that the first Plaintiff is the life interest holder; and for direction to the Defendants to hand over vacant possession of the suit property. The suit was decreed exparte on 14.06.1994. For the execution of the Decree and seeking delivery of possession, Plaintiffs filed E.P.No.53/ 1999. 3. Revision Petitioner, who is the son of the second Defendant, and his mother have filed O.S.No.1240/1996 for Permanent Injunction restraining the Defendants, who are the Plaintiffs in O.S.No.1031/1993, from interfering with the possession of the suit property except under due process of law. The suit O.S.No.1240/1996 was decreed. Appeal preferred against that Judgment in A.S.No.39/1998 was allowed observing that the Petitioner has to move only the Execution Court to seek appropriate relief, instead of filing an independent suit claiming equitable right. 4. Stating that he is in possession of the suit property and that Decree-Holder has to invoke Or.21 R.97 CPC, Petitioner filed memo to record his objection. Rejecting the Memo of Objection, Execution Court ordered delivery of possession, which is challenged in this revision. 5. The learned Counsel for the Revision Petitioner has contended that the Court below erred in saying that the Revision Petitioner is claiming through second Respondent. It was submitted that while the Petitioner is claiming through sub-lease pursuant to sublease Agreement, Memo of Objection ought to have been recorded and Decree-Holders ought to have been directed to file application under Or.21 R.97 CPC for removal of objection. 6. Drawing the attention of the Court to various applications filed by the Petitioner, the learned Counsel for the Decree-Holders/Respondents submitted that Petitioner having already filed Or.21 R.97 CPC and allowed it to be dismissed for default cannot raise any objection. It was further submitted that the Petitioner cannot successfully resist execution proceedings. 7. The Petitioner is none other than the son of the second Respondent, against whom Decree had become final. The Petitioner claims through lease Agreement dated 08.03.1991 through one Rajagopal. If there had been any such sub-lease, Defendants could have very well raised their objection in the suit O.S.No.1031/1993. 7. The Petitioner is none other than the son of the second Respondent, against whom Decree had become final. The Petitioner claims through lease Agreement dated 08.03.1991 through one Rajagopal. If there had been any such sub-lease, Defendants could have very well raised their objection in the suit O.S.No.1031/1993. But the Defendants have not contested the suit O.S.No.1031/1993 and the Decree had become final. 8. The Petitioner and his mother, instead of raising their objection in the execution proceedings, have initiated preliminary proceedings in O.S.No.1240/1996, seeking permanent injunction for protecting their possession. Holding that the Plaintiffs are armed with Decree of delivery of possession of the suit property and while they have moved the Execution Court for taking delivery of possession of the suit property, the Petitioner cannot maintain a Civil suit, the Appellate Court has dismissed A.S.No.39/1998 by its Judgment dated 111. 1998. 9. It is to be pointed out that the Petitioner had filed a number of applications in the execution proceedings. The applications filed by the Petitioner in execution proceedings are relevant to be noted. The Petitioner has filed E.A.No.280/2000 under Or.21 R.97 CPC to record his objections. That application was dismissed for default. Application filed for restoration of E.A.No.280/2000 was also dismissed. The Petitioner had filed Sec.47 application in E.A.No.414/2001 and the same was dismissed as not pressed. Though Petitioner had filed various applications, non-pursuing of the same only indicates lack of bonafides and merits. Pursuant to the Decree, the Execution Court has ordered delivery of possession and the Petitioner cannot successfully resist the execution proceedings and the delivery of possession ordered. This revision is devoid of merits and is bound to fail. 10. In the result, the order passed in E.P.No.53/1999 in O.S.No.1031/1993 dated 31.08.2006, on the file of the Principal District Munsif Court, Pondicherry is confirmed and this Revision Petition is dismissed. No costs. Consequently, M.P.No.1 of 2006 is also dismissed.