Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 4868 (MAD)

Parthasarathy (Died) & Others v. A. Ramachandran & Others

2009-11-12

M.VENUGOPAL

body2009
Judgment :- The petitioner/defendants 4, 5 and 6 have filed this civil revision petition as against the order dated 31.07.2009 in E.P.No.210 of 1990 in O.S.No.1563 of 1983 passed by the Learned X Assistant City Civil Court, Chennai. 2. The Executing Court while passing orders in E.P.No.210 of 1990 dated 31.07.2009 has come to a categorical conclusion that, "the Executing Court cannot travel beyond the decree and the claim made by the judgment debtor in the counter is found to be contrary to the decree passed by the Civil Court and therefore, until, otherwise, the decree is set aside by the Judicial Forum, the decree holds good and if this Execution Petition is dismissed, it amounts to miscarriage of justice and judicial indiscipline by the Executing Court" and has rejected the contentions of the revision petitioner and judgment debtors 4 and 5 and granted the relief of allowing the Execution Petition in favour of the respondent/decree holder. 3. According to the learned counsel for the revision petitioners the order of the Executing Court passed in E.P.No.210 of 1990 dated 31.07.2009 is against Law weight of evidence and probabilities of the case and the Executing Court has not taken the said suit property and possession undertaken by Tamil Nadu Slum Clearance Board for regularisation under the World Bank Aid Lease cum Sale Scheme in the proceedings G.o.1335 Revenue Department dated 111. 1992 and allotment order issued to all the residential parties living continuously for more than 10 years and also executed sale deed (Patta) in favour of the persons including the petitioner by TNSCB, Chennai and moreover, the Government has taken a policy decision by which all unobjectionable encroachments existing in Government land including those on road margins prior to 30.06.1984 should be regularised by issuance of house site Pattas and encroachment made by the petitioners form part of the slum for regularisation under the World Bank Aid Lease Cum sale scheme, but these material aspects have not been appreciated by the Executing Court in a real perspective and added further if once the properties have been declared as slum area by the TNSC Board the prior written permission of the TNSC Board is a must and mandatory requirement as per Section 29 of TN Slum Area Act 1972 (Act 11 of 1971) no proceedings can be instituted against the occupants in the property owned by the TNSC Board and unfortunately, these factual and legal position have not been adverted by the Executing Court properly while passing the orders in the Execution Petition and therefore prays for allowing the civil revision petition in furtherance of substantial cause of justice. 4. The learned counsel for the revision petitioners cites the decision of this Court Parthasarathy v. Kuppammal 1980 MLJ 83 wherein it is held that permission of the requisite authority under Section 29 for execution is necessary. 5. It is not in dispute that as against the judgment passed by this Court in Second Appeal No.587 and 588 of 1992, no further proceedings have been taken by the aggrieved persons. Significantly, in S.A.No.588 of 1992 the revision petitioner deceased Parthasarathy figured as appellant/first defendant and other revision petitioners are the sons and wife of the deceased late Parthasarathy in S.A.No.588 of 1992 this Court confirmed the judgment and decree of the First Appellate Court passed in A.S.No.667 of 1988 and therefore, the judgment and decree passed in S.A.No.588 of 1992 dated 22.02.2002 have become final and conclusive and binding between the intese parties. 6. It is an axiomatic fact that an Executing Court cannot go behind the tenor of Decree. 6. It is an axiomatic fact that an Executing Court cannot go behind the tenor of Decree. Generally speaking, a Decree Holder has to enjoy the fruits of the Decree and he may not be prevented by any means to enjoy the fruits of the decree after a prolonged litigation which has reached finality admittedly between the parties. Added further, in the judgment in S.A.Nos. 587 and 588 of 1992 dated 22.02.2002 this Court has among other things observed that, "to say that the lands in which the appellant have put up their huts belong to the Slum Clearance Board, no materials were available before the Courts below. As a matter of fact, the appellants have come forward with the specific case that the lands on which the defendants reside, are the properties belonging to the Government, and not as submitted by the appellant etc." This Court has ultimately confirmed the judgment and decree of the First Appellate Court passed in A.S.No.667 of 1988. 7. In view of the aforesaid factual position coupled with the legal proceedings initiated by the parties which have reached finality in S.A.Nos.587 and 588 of 1992, the Executing Court has no objection to proceed with the decree passed and viewed in that perspective, the order passed by the Executing Court in E.P.No.210 of 1990 dated 31.07.2009 directing the revision petitioner/judgment debtors to remove all and every constructions made all along the 40 feet frontage on the western side of the petitioners property more fully described in the schedule is perfectly a valid and justifiable order and there is no serious infirmity or patent illegality in the order so passed and consequently, the civil revision petition fails. 8. In fine, the civil revision petition is dismissed leaving the parties to bear their own costs. The orders passed by the Executing Court in E.P.No.210 of 1990 is confirmed by this Court for the reasons assigned in this revision. There shall be no order as to costs. Consequently, M.P.No.1 of 2009 is closed.