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2008 DIGILAW 2813 (MAD)

Kaliaperumal v. Kuppusamy

2008-08-04

S.TAMILVANAN

body2008
Judgment :- This Civil Revision Petition has been preferred against the Order and Decreetal Order, dated 04.02.2008 made in E.A.No.11 of 2008 in E.P.No.55 of 1997 in O.S.No.1876 of 1974 on the file of the District Munsif, Tittagudi. 2. The revision petitioner herein had filed an application under Section 47 of the Code of Civil Procedure before the trial court, seeking an order before the Executing Court to declare that the decree passed in the suit in O.S.No.1876 of 1974 and the connected proceedings and subsequent orders passed by the court below are null and void and inexecutable. By the impugned order, the application was dismissed on merits by the court below. Hence, this revision petition has been preferred by the petitioner herein. 3. It is an admitted fact that one late Chinnayya Padayachi was the original owner of the property, who had two wives, by name 1. Kaveri Ammal and 2. Poovammal and the said Chinnayya Padayachi had one son Adimoolam through his first wife Kaveri Ammal and three daughters by name 1. Poonachi, 2. Chinna Pillai and 3. Kuppammal, through his second wife Poovammal. Adimoolam had two sons, namely, Karuppiah and Kaliaperumal and two daughters, namely, Madanammal and Chinnaponnu. The petitioner herein, Kaliaperumal is one of the sons of the aforesaid Adimoolam. Poonachi had a son, by name Kuppusami and daughter Valambal. The said Kuppusamy is the respondent herein. The Genealogy furnished by the learned counsel appearing for the revision petitioner is not disputed by the learned Senior Counsel appearing for the respondent. .4. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent submitted that Chinnayya Padayachi, the original owner of the property had executed a settlement deed in the year 1937 in favour of his second wife Poovammal and some other properties were given to his first wife. Subsequently, Chinnayya Padayachis aforesaid daughters born through his second wife Poovammal filed the suit in O.S.No.1876 of 1974 for declaration of title and consequential injunction against Adimoolam and his sons Kaliaperumal, Karuppiah, daughters Madanammal and Chinnaponnu. Kaliyammal, wife of the first defendant Adimoolam was also arrayed as one of the defendants. After contest, the suit was decreed in favour of the plaintiffs namely, daughters of Chinnayya Padayachi, born through his second wife Poovammal. The aforesaid decree became final, which is not in dispute in this revision. Kaliyammal, wife of the first defendant Adimoolam was also arrayed as one of the defendants. After contest, the suit was decreed in favour of the plaintiffs namely, daughters of Chinnayya Padayachi, born through his second wife Poovammal. The aforesaid decree became final, which is not in dispute in this revision. Pursuant to the decree obtained in O.S.No.1876 of 1974, the decree holders filed Execution Petition before the court below. 5. In the counter filed by the respondent herein, it has been stated that the suit filed by Poonachi and her two sisters against the petitioner and his father in O.S.No.1876 of 1974 was decreed and accordingly, declaration of title and injunction was granted in respect of the first item of property and for the second item of property, declaration and recovery of possession was ordered in favour of the plaintiffs in the suit. 6. It is not in dispute that the revision petition that had been filed by the petitioner herein against the respondent in C.R.P. No.3352 of 2001 was dismissed by this Court, by order dated 03.03.2004, wherein the petitioner herein had challenged the decreetal order, dated 18.08.2000 made in I.A.No.514 of 1998 in the aforesaid suit. It is a settled proposition of law that the decree passed in the suit cannot be challenged, by way of filing an Execution Application under Section 47 of the Code of Civil Procedure before the Executing Court. 7. As per Section 47 of the Code of Civil Procedure, all questions arising between the parties to the suit, in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree, for which separate suit cannot be instituted. 8. In the impugned order, the court below has discussed in detail that the revision petitioner has not established any prima facie case to allow the petition filed under Section 47 of the Code of Civil Procedure. Learned counsel appearing for the revision petitioner could not produce any material to substantiate the claim of the revision petitioner, so as to allow the application. .9. This revision has been filed under Section 115 of the Code of Civil Procedure. Learned counsel appearing for the revision petitioner could not produce any material to substantiate the claim of the revision petitioner, so as to allow the application. .9. This revision has been filed under Section 115 of the Code of Civil Procedure. As per Section 115 CPC, this court may call for the records, relating to the impugned order passed by the subordinate court, to which no appeal lies thereto and if such subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. 10. In the instant case, there is no such facts and circumstance available to interfere with the impugned order passed by the court below and therefore, the Civil Revision Petition fails and accordingly, the same is liable to be dismissed. However, while expressing the view of this Court, Mr.K.A.Ravindran, learned counsel appearing for the revision petitioner submitted that there are standing crops in the land, cultivated by the revision petitioner, hence, sufficient time be granted for harvesting the same. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the respondent has no objection for granting reasonable time only on the filing of an affidavit of undertaking to vacate and hand over the possession of the property to the respondent herein and on the undertaking not to raise any further crops in the disputed land by the revision petitioner. 11. Considering the aforesaid facts and circumstances and the arguments advanced by both the learned counsel, I am of the view that this Civil Revision Petition has to be dismissed as no merits. Accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed. Considering the arguments advanced by both the learned counsel, the revision petitioner will be granted time till 312. 2008 to vacate and hand over the possession of the property to the respondent on the condition of filing an affidavit of undertaking by the petitioner on or before 18.08.2008 that he will vacate and hand over possession of the property on or before 312. 2008 and not to raise any further crops in the land relating to the E.P, failing which, the respondent / decree holder will be at liberty to execute the E.P.