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2013 DIGILAW 2957 (MAD)

Pattaiya Gounder v. Govindammal

2013-08-16

K.RAVICHANDRA BAABU

body2013
Judgment : 1. This civil revision petition is filed by the judgment debtor in O.S.No. 103 of 1983 on the file of the District Munsif Court, Kangayam, Tiruppur District. 2. The petitioner is aggrieved against the order made in E.A.No. 58 of 2012 in dismissing the application to reject the E.P.No. 49 of 2004 filed by the respondent/ decree holder. The petitioner, as the defendant in the above said suit, suffered a decree dated 31.10.1983. The trial Court declared the parties to a title of the plaintiff to the suit property and also directed the defendant to handover the possession of the same to the plaintiff. Insofar as the mesne profits is concerned, the trial Court relegated the proceedings separately under Order XX, Rule 12 of CPC. Consequently, the decree holder filed the execution petition to recover possession of the suit property from the petitioner herein. The petitioner herein filed E.A.No. 58 of 2012 praying for rejection of the said execution proceedings on the ground that the decree holder has sold the suit property to some third party during the pendency of the execution proceedings and therefore, the present execution petition filed for recovery of possession is not maintainable. The Executing Court rejected the application filed by the petitioner holding that the petitioner, as the judgment debtor, is bound by the decree and any alienation during the pendency of the execution proceedings is bound by the order passed in the execution proceedings and therefore, it cannot be a reason for rejecting the said execution proceedings. 3. Learned counsel appearing for the petitioner contended that after filing the execution petition, the decree holder sold the property to third party and in the sale deed, he has stated that the possession of the property has been handed over to the purchaser. Therefore, he contended that the present execution petition against the petitioner/ judgment debtor is not maintainable. 4. I am unable to appreciate the contention of the learned counsel for the petitioner. Admittedly, the petitioner, as the judgment debtor, suffered a decree for declaration and recovery of possession. It is not the case of the judgment debtor that he is not in possession of the suit property. Therefore, when an execution petition is filed, the judgment debtor, who is bound by the decree, is also bound to hand over possession of the suit property in the execution proceedings. It is not the case of the judgment debtor that he is not in possession of the suit property. Therefore, when an execution petition is filed, the judgment debtor, who is bound by the decree, is also bound to hand over possession of the suit property in the execution proceedings. Merely because the decree holder has sold the property to some third party during the pendency of the execution proceedings, does not mean that he is not entitle to continue the execution proceedings and recover possession of the suit property. Further, mere making an averments in the sale deed would not disentitle the decree holder from proceeding with the execution proceedings when the actual possession is still with the defendant/ judgment debtor. Therefore, the Court below has rightly dismissed the application filed by the petitioner, with which, I do not find any irregularity or infirmity. Accordingly, this civil revision petition is dismissed. Consequently, M.P. No. 1 of 2013 is dismissed. No costs.