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2012 DIGILAW 2548 (MAD)

Arumugam @ Kannan v. Kaliaperumal

2012-06-20

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 3.3.2010 passed by the Additional District Court, Puducherry at Karaikal, in E.A.No.14 of 2010 in E.P.No.52 of 2003 in O.S.No.45 of 2002, this civil revision is filed. 2. Heard both sides. 3. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 4. Compendiously and concisely the germane facts absolutely necessary for the disposal of this revision would run thus: (i) The respondents 1 and 2 herein filed the suit O.S.No.45 of 2002 and got a decree. Thereafter, E.P. was filed for obtaining delivery of possession, after demolishing the structure concerned.(ii) At that time E.A.N.14 of 2010 was filed by the revision petitioner herein, who happened to be D1 in the suit. Preciously the contention of the revision petitioner-Arumugam @ Kannan/D1 is found set out in the prayer in E.A., which is extracted as under: "i. To give effect to the decree by permitting the petitioner to demolish 495 square feet of the RCC roofed building being the northern equal half of the RCC building situated in a total plinth area of 990 square feet and also 165 square feet on the southern side found to be in the possession of the 2nd defendant and deliver the vacant site after demolishing the said RCC building situated thereon without touching or claiming delivery or demolition of any other portion of the property with the total extent of 2076 square feet described in the 1st item of the suit property in the possession of the petitioner, deducting suit II schedule mentioned extent of property. (ii) Directing the respondents to pay the costs of this petition is they contest the same." (extracted as such) (iii) After hearing both sides, the said application was dismissed, directing the delivery of the property, as per the decree. 5. Being aggrieved by and dissatisfied with the same, the revision petitioner/Judgment debtor No.1 filed this revision on various grounds. 6. The learned counsel for the revision petitioner/D1 would put forth and set forth his arguments, which could pithily and precisely be set out thus: (i) The order of the Executing Court is bereft of any reasons. Only as per the decree, the execution should follow. (ii) The Executing Court went to the extent of ordering demolition of the building of the second respondent herein-Dhanalakshmi/the second plaintiff. Only as per the decree, the execution should follow. (ii) The Executing Court went to the extent of ordering demolition of the building of the second respondent herein-Dhanalakshmi/the second plaintiff. As such, there was total non application of mind on the part of the Executing Court in passing the order. (iii) The revision petitioner/D1 is in possession of an ACC roofed structure, but under the guise of executing the decree, the decree holders are trying to get demolished the said ACC roofed structure put up by the revision petitioner/judgment debtor No.1. 7. Drawing the attention of this Court to the various portions of the orders passed and various proceedings and also the decree, the learned counsel for the revision petitioner/D1 would submit that the attempt on the part of the decree holders in getting the relief over and above the decree should be discouraged and accordingly, the revision might be allowed by setting aside the order passed in the E.P. and by allowing the E.A. 8. Per contra, the learned counsel for the respondents 1 and 2/decree holders, would put forth and set forth his arguments, which could pithily and precisely be set out thus: (i) Already D2-Balasubramanian vacated his portion concerned. Only D1-the revision petitioner herein is raising objection, which is untenable.(ii) The decree is clear that the revision petitioner/D1 is having no right in the entire suit property and he was asked to deliver possession of the Northern portion of the entire property and injunction was operating as against him in respect of the Southern portion of the entire property which comprised of 2076 square feet and in that RCC building is in an area of 990 sq. feet and the Northern half of the RCC building should be demolished and in fact, the revision petitioner/D1, on the decree being executed is having no right to occupy any portion of the property in the entire area concerned, referred to in the plaint. Accordingly, the learned counsel would pray for dismissal of the revision petition. 9. The points for consideration are as under: (i) Whether the contention of the revision petitioner/D1 that his right over the ACC roofed portion in the suit property should be protected? (ii) Whether there is any perversity or illegality in the order passed by the Executing Court? 10. Accordingly, the learned counsel would pray for dismissal of the revision petition. 9. The points for consideration are as under: (i) Whether the contention of the revision petitioner/D1 that his right over the ACC roofed portion in the suit property should be protected? (ii) Whether there is any perversity or illegality in the order passed by the Executing Court? 10. Heard both sides in extenso and I have gone through the copy of the written statement also, which was shown to me by the learned counsel for the revision petitioner. 11. I am having no doubt in construing the decree to the effect that the suit is filed for the entire extent of 2076 square feet of plot area and in that there is a building measuring an extent of 990 sq. feet. 12. It was the precise case of the plaintiffs that the Northern half of that building was under the occupation of D1. However, the revision petitioner/D1 contended that it was he who raised the entire building and he was enjoying the property as a co-sharer; and that there was no question of he being treated as encroacher for being evicted. The revision petitioner herein/D1 would also go to the extent of pleading in the written statement that the entire property was divided into Northern half and southern half; a wall running from East to West was constructed by him and in such a case relating to the Northern portion of the entire property, there is no question of the plaintiffs claiming any right. However all those contentions were negatived and as against which, the appeal was filed before this Court and the same was also dismissed as against him. 13. In such a case, it cannot be construed even by phantasmagorical thoughts that in that entire extent of 2076 square feet, de hors the said Northern portion of the RCC building, D1 had some right to have an ACC roofed sheet, which he had put up. 14. At this juncture, I recollect the maxim 'Parum est latam esse sententiam, nisi mandetur execution' It is not enough that judgment has been given if it is not committed to execution. 15. The above ratiocination adhered to by me would unambiguously and unequivocally highlight that the revision petitioner/D1 is now trying to make a mountain out of mole hill. 14. At this juncture, I recollect the maxim 'Parum est latam esse sententiam, nisi mandetur execution' It is not enough that judgment has been given if it is not committed to execution. 15. The above ratiocination adhered to by me would unambiguously and unequivocally highlight that the revision petitioner/D1 is now trying to make a mountain out of mole hill. Simply because there is no reference to ACC roofed structure in the 'A' Schedule or the 'B' Schedule of the decree, now he cannot try to press into service the point that the said ACC roofed building should be beyond execution and it should not be meddled with. 16. The entire gamut of the suit and the decree passed and the respective rights of the parties should be construed, and accordingly if viewed the contention of the revision petitioner/judgment debtor No.1 is untenable and it cannot be countenanced and upheld. Accordingly, I am of the view that the revision petitioner/D1 is not entitled to any relief. 17. In the result, the civil revision petition is dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed.