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2013 DIGILAW 2456 (MAD)

V. Dhanraj v. R. Durairaj (since deceased)

2013-07-15

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. This civil revision petition is filed against the order of the Court below in dismissing the application filed under Section 47 r/w Sections 141 and 151 CPC. 2. The petitioner herein, as a third party-claimant, filed the above application before the Executing Court in E.A.No. 116 of 2001 seeking for release of the property in S.Nos. 37/4 and 37/6 from the purview of execution proceedings in E.P.R.No.253 of 1984 and alternatively to dismiss the said execution petition by contending that those properties belong to him. The case of the petitioner before the Court below is that he is the son of one Vedamanickam and he does not own any land or property in S.F.No. 37/1A2 and on the other hand their property is situated at S.F.No. 37/4 and 37/6. One Dorairaj filed the suit in O.S.No. 197 of 1961 on the file of the District Munsif, Conoor, for partition in respect of a property at old S.No. A37/1A2 and Re-Survey No. 37/4 measuring an extent of 36 cents. The said Durairaj preferred an execution petition in E.P.R.No.253 of 1984 in which the petitioner's father obstructed the execution proceedings. Therefore, the decree holder filed E.A.No. 18 of 1986 for removal of obstruction. During the pendency of the said E.A.No. 18 of 1986 the petitioner's father died on 8.4.1994 and a memo reporting his death was also filed into the court on 11.4.1994 itself. However, the decree holder did not implead the petitioner and other legal heirs in the said E.A. and consequently the same was dismissed as against the petitioner's father on 24.1.1995. The said decree holder Durairaj died on 18.8.1996 and thereafter when the execution proceedings was sought to be continued by his legal heirs, the petitioner filed E.A.No. 116 of 2001 seeking for the relief as stated supra. 3. It is the case of the petitioner that the property in S.No. 37/4 is belonging to him and without impleading him as a party to the proceedings, the said property cannot be subjected to execution proceedings. It is the further case of the petitioner that as he has not been arrayed as a party in respect of a property in S.No.37/4 over which, he has got valid title, which is supported by material documents, he filed an application before the Court below seeking the relief as stated supra. He has marked Exs. It is the further case of the petitioner that as he has not been arrayed as a party in respect of a property in S.No.37/4 over which, he has got valid title, which is supported by material documents, he filed an application before the Court below seeking the relief as stated supra. He has marked Exs. A1 to A45 and also examined himself as P.W.1. 4. On the other hand, the respondents herein have not marked any document or examined any oral witness on their behalf. The Court below has rejected the application filed by the petitioner only on the ground that the preliminary decree passed by the Court below contains the S.No. 37/4 and therefore, the petition filed by the petitioner is not maintainable. Apart from holding so, the Court below has also rejected the documents filed by the petitioner as not valid, without considering the rival claims of the parties on merits. 5. Mr. Satish Parasaran, learned counsel appearing for the petitioner submitted that even though the application was filed wrongly under Section 47 read with Sections 141 and 151 CPC, the application ought to have been considered as the one filed under Order XXI, Rule 97 of CPC and therefore, the Court below should have gone into the merits and contentions of the rival parties by construing it as a suit and decide the same by passing a detailed order on merits. The Court below has rejected the application as not maintainable simply because the S.No. 37/4 is referred to in the decree. He further contended that when the petitioner is not a party before the trial Court, certainly, he is entitled to raise all his objections before the Executing Court and that has been rightly done by the petitioner. 6. Per contra, the learned counsel appearing for the respondents submitted that the petitioner has only stepped into the shoes of one Karuppan, who is the first defendant in the suit and therefore, he cannot have better title than the said person and consequently, the application filed by the petitioner cannot be entertained as the same is without any merit. 7. Per contra, the learned counsel appearing for the respondents submitted that the petitioner has only stepped into the shoes of one Karuppan, who is the first defendant in the suit and therefore, he cannot have better title than the said person and consequently, the application filed by the petitioner cannot be entertained as the same is without any merit. 7. After hearing both sides and after perusing the order passed by the Court below, I find that the Court below has only rejected the application on the ground that the preliminary decree passed by the trial Court contains the S.No.37/4 and therefore, the petition filed by the petitioner is not maintainable. I am unable to appreciate the reasoning given by the Court below for the simple reason that the petitioner has come forward with the present application by specifically contending that he was not a party to the suit or execution proceedings and however, his property was shown as the suit property. If that is his contention, then all his objections have to be considered and decided, as contemplated under Order XXI, Rule 97 CPC. Thus, the Court below has erred in rejecting the application only on the reason that the S.No.37/4 is the suit property and shown in the preliminary decree. The Court below has also erred in observing that the documents filed on behalf of the petitioner are invalid, without assigning any valid reason in respect of each and every document filed by the petitioner. In my considered view, such a general observation of the Court below is also unwarranted and unjustifiable. No doubt the application filed by the petitioner is not maintainable under Section 47 CPC as he was not a party to the suit. Equally an application under Order 21, Rule 97 is also maintainable only at the instance of the decree holder complaining obstruction. However, in this case, the petition was filed also under Section 151 CPC where the Court is empowered to exercise its inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse or process of the Court. Thus, the Court should have gone into the merits and contentions and passed a detailed order. Thus, the Court should have gone into the merits and contentions and passed a detailed order. Consequently, I set aside the order passed by the Court below and remand the matter for fresh consideration of the application filed by the petitioner and dispose of the same, after giving due opportunity to both sides and pass orders on merits and in accordance with law. I make it clear that I am not expressing any view on the merits and contentions of the rival parties. It is open to the respondents to adduce evidence in their favour and in support of their contentions. Since the suit is of the year 1961 and the Execution Petition is of the year 1984, I direct the Court below to dispose of the said application within a period of three months from the date of receipt of a copy of this order. This civil revision petition is ordered accordingly. Consequently, CMP No.13513 of 2004 and VCMP No.12031 of 2005 are closed. No costs.