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2012 DIGILAW 2014 (MAD)

Rasu @ Rajagopal (Died) v. Kamala Saraswathi

2012-04-23

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the fair and decreetal order dated 13.02.2012 passed by the learned Additional Subordinate Judge, Puducherry in E.A.No.383 of 2010 filed under Section 47 of the Code of Civil Procedure in E.P.No.129 of 2008 in O.S.No.21 of 1988, this civil revision petition is focussed. 2. A summation and summarisation of the relevant facts, absolutely necessary and germane for the disposal of this revision petition would run thus: (i) The original suit O.S.No.21 of 1988 was filed by the respondent-plaintiff herein seeking declaration and recovery of possession specifying the schedule of property; whereupon, the suit was decreed; as against which the first appeal was filed for nothing but to be dismissed; whereupon the second appeal was filed and that was also dismissed by the High Court. Whereupon, E.P was filed for obtaining delivery of possession. It appears that the Executing court ordered delivery to be effected in favour of the decree holder with the assistance of a Government Surveyor after dismissing the unnumbered E.A. Filed by the Judgment Debtors for appointment of an Advocate Commissioner. (ii) Being aggrieved by and dissatisfied with the order of dismissal of the application filed by the Judgment Debtors under Section 47 of the Code of Civil Procedure in E.A.No.383 of 2010 contending that the description of the property was wrong in the plaint as well as in the decree and that the decree was inexecutable, this revision has been filed. 3. The points for consideration are as under: 1.) Whether the Judgment Debtors were justified in raising the point that the description of property was wrong and that the decree passed based on such description was inexecutable? 2.) Whether there is any perversity or illegality in the order of dismissal passed by the court below? 4. A mere poring over and perusal of the entire records including the FMB sketch shown before me at this stage would evince and evidence that there are three re-survey Sub division Numbers involved in this case. It is therefore, just and necessary to extract here under the very schedule of the property mentioned in the decree. SCHEDULE OF PROPERTY Pondicherry R.D. Oulgaret S.R.D., Oulgaret Commune, Periya Kalapet Village, Old Ced.No.580 Bis, Re-Survey Nos.241/102, 241/103 and 241/105 in this area a manai and a brick built tiled house therein, the manai to an extent of 6 Are and 68 Centiares. SCHEDULE OF PROPERTY Pondicherry R.D. Oulgaret S.R.D., Oulgaret Commune, Periya Kalapet Village, Old Ced.No.580 Bis, Re-Survey Nos.241/102, 241/103 and 241/105 in this area a manai and a brick built tiled house therein, the manai to an extent of 6 Are and 68 Centiares. BOUNDARIES : 1.) To the North of the Bangalow Street, 2.) To the East of the Sinnasanthu Street, 3.) To the West of the house and garden Rasu @ Rajagopal Naicker and house and garden of Neelanda Chettiar. 4.) To the South of the Mariamman Koil Street. Dated at Pondicherry, on this the 24th day of September 2008. The extent also is found mentioned as 6 are and 68 centiares. 5. On the one hand, the learned Senior counsel for the revision petitioners would submit that there are two houses, one tiled and another terraced, are situated in the property; whereas in the decree only one tiled house is found referred to. Over and above that the boundaries did not tally on ground. In fact the terraced house built by the revision petitioners/judgment debtors belongs to them and that cannot be taken away by the decree-holder under the pretext of getting the decree executed. 6. Per contra, the learned counsel for the decree-holder would vehemently oppose such an argument on the ground that boundaries do tally on ground and the extent also tallies with the description as found in the schedule of property in the decree; absolutely, there is no difficulty in executing the decree; no doubt, in the schedule of property one tiled house is referred to; but pendente lite, so to say, when the matter was pending at the second appellate stage, such one other house was raised illegally and unauthorisedly by the judgment debtors, who cannot lay claim over it and that has to be ignored. 7. I would like to point out that pendente lite, if the judgment debtors at their own risk raised any structure, then they cannot try to stall the execution proceedings by stating that they had raised such a structure and that should be excluded from being delivered. 8. At present, the Executing court cannot go beyond the judgment and decree as the same has been confirmed by the Appellate Court as well as the High Court. 8. At present, the Executing court cannot go beyond the judgment and decree as the same has been confirmed by the Appellate Court as well as the High Court. Even before this court, in Second Appeal no substantial question of law was framed relating to the alleged vagueness of the description of the suit property and also the inexecutability of the decree passed by the lower court and as confirmed by the Appellate court and the High Court. 9. Whereupon, a general question arises as to whether the decree-holder can snatch away by hook or by crook some property not covered by the decree. The answer is at once clear that under Order 21 of CPC very many provisions are there to safe-guard the interest of the Judgment debtor also. The Executing Court is bound to get located on ground the suit property as found described in the decree, wherefore, only in this case, correctly and appropriately, direction was given by the Executing court to deliver the suit property with the help of a Government surveyor. 10. Hence, in this factual matrix, this court has to detail and delineate the duty of the Executing officials including the Surveyor. 11. The official of the court, so to say, the Ameen or the personnel responsible for effecting delivery should go to the suit property with the assistance of a Government surveyor, who is expected to measure the suit property and locate it by referring to the decree as well as the relevant Government maps and records concerned and if it tallies with the decree, then immediately delivery has to be effected. If as contended by the Judgment debtors, there is total incongruity or inconsistency, then it is for such officials concerned to report to the court; whereupon the court will pass further direction as otherwise there may not be any hitch for recording delivery. It is always open for the Judgment Debtor, if not satisfied with the conduct of the officials in executing the decree, to petition the court immediately before delivery being recorded and get suitable orders as per law. 12. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.