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2010 DIGILAW 3073 (MAD)

Amaresan v. S. Nagappan

2010-07-26

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 19.02.2010 passed in E.A.No.127 of 2007 in E.P.No.70 of 2003 in O.S.No.199 of 1993 by the Principal District Munsif, Poonamallee, this civil revision petition is focussed. The parties are referred to hereunder according to their litigative status and ranking in the suit. 2. Heard both sides. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: (i) The respondent herein filed the suit as against the revision petitioner seeking injunctions, both mandatory and prohibitory. Ultimately, the trial Court passed the decree, the operative portion of it would run thus: (ii) The learned counsel for the plaintiff would submit that subsequent to the passing of the decree, the defendant trespassed into the suit property whereupon, it necessitated the plaintiff to file the E.P.No.70 of 2003. The E.P. was resisted and in fact the defendant filed application E.A.No.127 of 2007 under Section 47 of CPC with the following prayer: "To declare that the decree in the suit cannot be executed against the schedule mentioned property and therefore null and void and directing the respondent to pay the cost." (iii) During enquiry of the said application, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.P1 to P70 were marked. On the side of the defendant, Exs.R1 and R2 were marked. Ultimately, the Executing Court dismissed the application under Section 47 of CPC. 4. Being aggrieved by and dissatisfied with the said order, this revision has been filed on various grounds, the warp and woof of them would run thus: The Executing Court failed to take into account the trite proposition of law that even subsequent events could be taken into account by the Executing Court and based on the same it could be held that the decree is in executable. The Executing Court failed to take into account the fact that the property is basically a poromboke land and the very plaintiff himself was in unauthorised occupation of it. The Executing Court failed to take into account the fact that the property is basically a poromboke land and the very plaintiff himself was in unauthorised occupation of it. Subsequently, the Housing Board who got vested on itself the said poromboke land, had the capacity and power to allot the areas which are already in the possession of the persons concerned and as such, as of now, the revision petitioner got such allotment from the Slum Clearance Board and he is in possession of the suit property on that basis. There is no embargo for the Court to take note of the same. However, the Executing Court took a draconian view of the matter and simply dismissed the application under Section 47 of CPC. The lower Court also failed to take into consideration the fact that even before the filing of the suit by the plaintiff, the defendant had been in possession and enjoyment and he continues to be in possession and enjoyment of the same. These are all facts the Executing Court should have taken into account, but failed to do so, warranting interference by this Court. 5. Per contra, challenging and impugning the contentions/allegations including the arguments as put forth and set forth on the side of the revision petitioner herein, the learned counsel for the plaintiff would advance his arguments, the warp and woof of them would run thus: The Executing Court correctly fumigating its mind with the proper proposition of law governing the adjudication relating to application under Section 47 of CPC, dismissed the said application and in such a case there is no merit in this revision. The decree passed is not even an ex parte decree and it is a contested one. Even assuming it is an ex parte decree, the defendant has not raised his little finger in getting that ex parte decree set aside. Trite the proposition of law is that a decree of the Court whether ex parte or otherwise, should be adhered to by the defendant and he cannot raise his accusative finger as against the lower Court which passed the decree before the Executing Court which is expected to execute only the decree and it cannot assume the role of an appellate forum. The allegations as found set out in the application under Section 47 of CPC are all untenable. The allegations as found set out in the application under Section 47 of CPC are all untenable. Accordingly, reiterating the grounds of revision, the learned counsel for the plaintiff would pray for dismissal of the application and also he would pray for direction to the lower Court to expedite the process in the E.P. now pending before the lower forum. 6. The points for consideration are as to: (1) Whether the revision petitioner had the right to press into service the facts concerning his alleged possession even anterior to the filing of the suit? and whether he could call upon the Executing Court to take note of the allotment order given by the Slum Clearance Board in favour of the revision petitioner herein? (2) Whether there is any perversity or illegality in the order passed by the Court? 7. The learned counsel for the respondent inviting the attention of this Court to the judgment dated 29.11.2001 passed by the lower Court in O.S.No.199 of 1993 would submit that the said judgment emerged after full contest by the defendant at the trial and absolutely there is nothing wrong in the said judgment and it could never be stated to be a nullity. Even assuming that the said judgment and decree are ex parte ones, still the defendant has not chosen to get set aside the judgment and decree by preferring appeal or approaching the same Court under Order 9 Rule 13 of CPC. In such a case, the question of challenging the validity of the decree before the Executing Court by invoking Section 47 of CPC would not arise. Ex facie and prima facie it is clear that the Court which passed the decree is competent in all aspects and did not suffer from any lack of jurisdiction cutting at the very validity of its judgment. Once validity of the decree cannot be challenged, the question of invoking Section 47 of CPC would not arise. 8. The learned counsel for the revision petitioner would implore and entreat that the Court which passed the decree simply ignored the factum that the plaintiff could not have had the right to get any relief in relation to the poromboke land. 8. The learned counsel for the revision petitioner would implore and entreat that the Court which passed the decree simply ignored the factum that the plaintiff could not have had the right to get any relief in relation to the poromboke land. Even though the prayer in the plaint was only for injunction and mandatory injunction, nonetheless, the Court should have considered incidentally the right of the plaintiff over the property, but it failed to do so. Adding fuel to the fire, the Government itself has come to the rescue of the defendant and after studying the whole position, the Slum Clearance Board allotted the property concerned in favour of the defendant and that itself would indicate and exemplify that the decree was passed because of the suppression of material facts at the instance of the plaintiff. Be that as it may, it is a well settled proposition of law that when a decree of a Civil Court is in existence, it should be respected in all aspects and the Executing Court cannot on factual basis re-analyse the evidence and arrive at a different conclusion. No doubt, subsequent events can rightly be taken into account, but not in a matter like this. 9. After considering the pro et contra, the lower Court passed the judgment to the effect that the plaintiff was in possession and enjoyment of the property as on the date of the filing of the suit and a small strip of land alone was under the encroachment of the defendant and accordingly, permanent injunction in respect of one portion and mandatory injunction in respect of another portion as found described in the schedule of the plaint were issued as against the defendant. Without challenging the said judgment and decree in the way known to law, it was not open for the plaintiff to invoke Section 47 of CPC. 10. At this juncture, I recollect and call up the following decisions relating to Section 47 of CPC: (1) (2007) 4 MLJ 361(SC) – DARSHAN SINGH VS. STATE OF PUNJAB. (2) (2007) 4 MLJ 1252 – D.SARASWATHY AND OTHERS VS. K.KRISHNASAMY AND OTHERS. 10. At this juncture, I recollect and call up the following decisions relating to Section 47 of CPC: (1) (2007) 4 MLJ 361(SC) – DARSHAN SINGH VS. STATE OF PUNJAB. (2) (2007) 4 MLJ 1252 – D.SARASWATHY AND OTHERS VS. K.KRISHNASAMY AND OTHERS. (3) (2005) 1 M.L.J.682 – HEMANATHAN AND ANOTHER V. N.KUPUSWWAMY AND OTHERS A mere poring over and perusal of the precedents cited supra would clearly exemplify and demonstrate that the scope of Section 47 of CPC is limited and the trial Court cannot assume itself the role of an appellate forum relating to the decree passed. 11. The core question might arise as to what would be the effect of the allotment given by a Governmental agency or the body like the Slum Clearance Board relating to the suit property. That was not the subject matter of issue at all before the Court and it might be a subsequent development. In such a case, it is open for the revision petitioner, if so advised, to set the law in motion and not by filing this application under Section 47 of CPC which is having only limited scope. 12. The perusal of the lower Court order would reveal that the lower Court au fait with law and au courant with facts discussed in detail the relevant features and arrived at the conclusion that during the pendency of the suit only there was trespass by the defendant and consequently, the plaint was amended and ultimately the suit was decreed. As such it is crystal clear that the Executing Court addressed itself properly to the point raised before it and dismissed the application warranting no interference in this revision. Accordingly, this revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 13. The learned counsel for the plaintiff would make an extempore submission that direction might be given to the lower Court to proceed with the E.P. Accordingly, the E.P. shall be proceeded with by the lower Court.