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2011 DIGILAW 454 (MAD)

G. Gopi v. G. Palani

2011-01-28

S.TAMILVANAN

body2011
Judgment :- 1. Heard both the learned counsel appearing for the petitioner as well as the respondent. 2. Challenging the order, dated 18.02.2008 made in E.A.No.4 of 2004 in E.P.No.48 of 2001 in O.S.No.212 of 1998 on the file of the Subordinate Judge, Ponneri, this Civil Revision has been preferred by the petitioner / judgment-debtor. 3. It is seen that the Execution Application was filed under Section 47 and Section 151 CPC by the petitioner / judgment-debtor, seeking an order to hold that the respondent / decree-holder is not entitled to execute the decree in view of the change of door number. 4. It is not in dispute that the suit was filed by the respondent herein before the Court below, seeking a decree directing the petitioner / defendant to quit and deliver vacant possession of the property, based on the settlement deed executed by the mother of the decree-holder. 5. As contended by the learned counsel appearing for the respondent, the schedule of property is 150 sq.ft, bearing Door No.593 at T.H.Road, Chinna Ernavour, Madhavaram Firks, Saidapet Taluk with specific boundaries. 6. In the written statement, the petitioner / defendant has specifically admitted the identity of the property and pleaded that he was in actual possession and enjoyment of the property, by running a shop under the self-employment scheme and further, in the written statement he has averred that the alleged Document No.499/95, dated 14.02.1995 could not have been actually executed by the mother of both the petitioner and the respondent. 7. After the trial, it was held by the Court below that the claim of the respondent herein was proved and accordingly, the suit was decreed and reached finality, which is not in dispute. 8. As contended by the learned counsel appearing for the respondent / decree-holder, there is no other property possessed by the petitioner or respondent in the aforesaid survey number having the aforesaid description of the property available in the decree and the extent is also not in dispute. Therefore, there is no dispute with regard to the identity of the property having original Door No.593, at T.H.Road, Chinna Ernavour, Madhavaram Firks, Saidapet Taluk. 9. Therefore, there is no dispute with regard to the identity of the property having original Door No.593, at T.H.Road, Chinna Ernavour, Madhavaram Firks, Saidapet Taluk. 9. Learned counsel appearing for the petitioner / judgment-debtor submitted that the ameen, who was entrusted to execute the decree, subsequently reported before the Court below that the present door number is different, however, the Court below, without notice to the petitioner / judgment-debtor allowed the petition, seeking amendment, which is erroneous. As contended by the learned counsel appearing for the respondent / decree-holder, the aforesaid amendment has not been challenged by the petitioner herein and according to him, there was notice to the petitioner / judgment-debtor prior to the amendment with regard to the door number. 10. Hence, this Court has to consider whether the dismissal of the petition filed by the judgment-debtor under Section 47 CPC is legally sustainable or not ? 11. It is an admitted fact that pursuant to the decree obtained, the respondent / decree-holder filed Execution Petition before the Court below, wherein he has specifically stated the old door number as well as the new door number 593/E with the extent and four boundaries. From the extent and the four boundaries and also the fact that neither the petitioner nor the respondent has any other property at T.H.Road, Chinna Ernavour, Madavaram Firks, Saidapet Taluk, hence, it is clear that there is no dispute with regard to the identity of the property. The petitioner herein is not a third party and he is only the judgment-debtor, who suffered a decree after contest and the decree reached its finality. As contended by the learned counsel for the respondent / decree-holder, the authorities have changed the door number with new sub door number and even, the amendment was not challenged by the petitioner. 12. As per Section 47 CPC, Explanation II (b), all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge of satisfaction of the decree within the meaning of this section. It is an admitted fact that the description of property as per the decree and the Execution Petition is one and the same and there is no other property available to the petitioner, nearby the said property. It is an admitted fact that the description of property as per the decree and the Execution Petition is one and the same and there is no other property available to the petitioner, nearby the said property. Hence, based on the change of door number by the local body cannot be a legal ground to raise objection under Section 47 CPC. 13. On the aforesaid facts and circumstances, I am of the view that there is no legal grievance to petitioner / judgment-debtor for filing the application under Section 47 CPC against the execution of the decree, which reached finality. It is quite clear that there is no dispute with regard to the identity of the property and therefore, I could find no error or infirmity in the impugned order passed by the Court below, dismissing the application filed by the petitioner / judgment-debtor, so as to warrant any interference by this Court and accordingly, the Revision is liable to be dismissed. 14. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.