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2013 DIGILAW 318 (MAD)

M. Chellapandi Nadar v. J. Subbulakshmiammal

2013-01-11

G.RAJASURIA

body2013
JUDGMENT 1. The Civil Revision Petition has been filed to get set aside the order dated 21.12.2012 passed in E.P.No.70 of 2012 in O.S.No.496 of 1980, by the learned District Munsif, Kovilpatti. 2. Heard both sides. 3. The learned Counsel for the revision petitioner would echo the cri de coeur and heart burns of his client to the effect that the petitioner happened to be the Judgment debtor in the suit in O.S.No.496 of 1980 and respondent in E.P.NO.70 of 2012; while so, he filed an application under Section 47 of the Code of Civil Procedure challenging the executability of the said decree; however the lower Court without even numbering it, heard simply about the maintainability and rejected the petition, without assigning any reason. 4. Being aggrieved by and dissatisfied with the order passed by the lower Court, this Civil Revision Petition has been focussed on various grounds. 5. The identity of the suit property is in dispute and under the pretext of executing the decree which achieved finality upto the Honourable Supreme Court, the plaintiff cannot take properties which are not covered by the decree and the property which do not tally with the description as found in the decree. 6. Whereas the learned Senior Counsel appearing for the respondent would put forth and set forth his objection to the effect that absolutely, there is no dispute about the identity. There are as many as several occupants in different moieties in the land of the plaintiff/decree holder and earlier they all contended as though they are in Government Poromboke land; whereupon a separate suit was filed by the plaintiff as against the Government and in that, finality has been achieved by giving a finding by the Court that the property belonged to the plaintiff; whereas the present decree was passed by the Court; as against which some of the persons preferred an appeal and even the revision petitioner herein preferred the Second Appeal which was dismissed. But some other occupiers preferred SLP and that was dismissed vide order dated 09.04.2012 on merits; now then purely for the purpose of protracting the proceedings, the learned Counsel for the judgment debtor raised the identity dispute etc. 7. The point for consideration is as to whether the Lower Court without any basis simply deprived the judgment debtor from getting the case decided under Section 47 of the Code of Civil Procedure? 7. The point for consideration is as to whether the Lower Court without any basis simply deprived the judgment debtor from getting the case decided under Section 47 of the Code of Civil Procedure? The Point: 8. Indisputably and indisputably, the decree contains the description of the property and trite the proposition of law is that the Executing Court cannot go beyond the decree, while delivering the property; the description as found in the suit property should be identified and thereafter only that could be delivered. Over and above that, nothing could be done. 9. A mere running of the eye over the records would reveal that the Courts dealt with the matter elaborately. It is the contention of the judgment debtor as well as the persons similarly placed like him that the concerned suit property is situated in the Government Poromboke land, whereas the Courts held that it did not belong to Government, but it belonged to the decree holder/plaintiff herein. In such a case, the question of doubting the identity with regard to one moiety of the land wherein the judgment debtor occupies, does not arise. 10. The learned Counsel for the revision petitioner would repeatedly point out that as of now, the door number does not tally etc. 11. As such, my discussion supra, would indicate and point out that absolutely there is no iota or shred, jot or pint of evidence, to doubt about the very description of the suit property. The dispute is strictly with regard to the fact as to whom the property belonged and on one hand, the judgment decree contended that the property belonged to the Government, so to say, they set up the plea of jus tertii which was negatived. In such a case, by filing an application under Section 47 of the Code of Civil Procedure, the Judgment debtor cannot try to protract the proceedings. 12. I could see one valid point on the part of the learned Counsel for the revision petitioner in contending that the Executing Court should deliver only the property described in the schedule of the plaint and accordingly the Executing Court should do the same. I recollect the following legal maxim: "Parum est latam esse sententiam nisi mandetur executioni." [It is not enough that judgment has been given if it is not committed to execution.] 13. I recollect the following legal maxim: "Parum est latam esse sententiam nisi mandetur executioni." [It is not enough that judgment has been given if it is not committed to execution.] 13. It is not enough that judgments are passed, but they should be put to execution; otherwise the rule of law will be in doll drums. The point is answered accordingly. 14. With the above observations, the Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.