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2012 DIGILAW 345 (MAD)

Ponnuvel Nadar v. Ghouse Bhasha

2012-01-24

T.S.SIVAGNANAM

body2012
Judgment :- 1. This Revision filed, under Section 115 of the Civil Procedure Code (CPC), is directed against the order and decreetal order, dated 09.01.2006, made in E.A.No.4577/2005 in E.P.No.1223 of 2004 in I.A.No.14646 of 1984 in O.S.No.8017 of 1980 on the file of the IX Assistant, City Civil Court, Chennai 2. The judgment debtors are the petitioners herein and the respondent is the decree-holder. The respondent filed a suit in O.S.No.8017 of 1980, for partition of the suit schedule property and delivery of half share therein and for rendition of accounts. The petitioners, who are the defendants in the suit, filed a written statement and resisted the suit claim. The trial Court by judgment and decree dated 31.10.1984, decreed the suit as prayed for. During the pendency of the suit, the petitioners herein purchased half undivided share in the said property from A.Dawood Bhasha, the first plaintiff and they were impleaded in the suit as plaintiffs. The defendants 1 and 2 filed I.A.No.14646 of 1984, under Section 4 of the Partition Act, stating that the suit property is a dwelling house and it is impossible for ever-body to reside in the house and they are willing to purchase the shares of the respondents therein and prayed for a direction to direct them to sell their shares for a price fixed by the Court. An Advocate Commissioner was appointed to ascertain the value of the suit property. After contest, the application was ordered as prayed for by order dated 31.10.1984. The petitioners herein preferred a revision before this Court against the said order in CRP.No.1672 of 1985 and the order dated 31.10.1984, was stayed. Ultimately, the revision petition was dismissed, by this Court on 13.06.1990. After the dismissal of the revision petition, the trial Court directed by an order dated 27.06.2003, to deposit a sum of Rs.31,071/-. Thereafter, the respondent Ghouse Bhasha filed E.P.No.1223 of 2004, since by that time, Khursheed Begam died. In the said Execution petition, the petitioner filed E.A.No.4577 of 2005, under Section 47 CPC, to declare the order dated 27.06.2003, as in-executable and prayed for dismissing the Execution petition. The Executing Court, by order dated 09.01.2006, dismissed the application, challenging the same, the present revision petition has been filed. 3. Heard the learned counsels appearing for the parties and perused the materials available on record. 4. The Executing Court, by order dated 09.01.2006, dismissed the application, challenging the same, the present revision petition has been filed. 3. Heard the learned counsels appearing for the parties and perused the materials available on record. 4. The learned counsel appearing for the petitioner would contend that the impugned order has been passed without reference to the oral evidence of PW-1, and the documentary evidence, namely, guideline value fixed by the Sub-Registrar and the value of the property arrived at by the Court is ridiculously low. Unfortunately, the petitioners did not challenge the order dated 27.06.2003. By the said order, the trial Court directed to deposit a sum of Rs.31,071/-. As long as the said order, has not been challenged, the Court below was fully justified in dismissing the application filed under Section 47 CPC, since the executing Court cannot go behind the decree. That apart, after the Advocate Commissioner was appointed, by order dated 31.10.1984, the petitioners filed revision petition before this Court in CRP.No.1672 of 1985 and the order was stayed. It is only on 13.06.1990, the Civil Revision petition was dismissed. Therefore, the petitioners cannot in an application under Section 47 CPC raise a contention regarding the sufficiency of the value fixed by the Court on 27.06.2003, after having allowed the order to become final. In that view of the matter, the petitioners have not made out a case for interference, by the order passed by the Executing Court. 5. In the result, the Civil Revision petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.