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2013 DIGILAW 4169 (MAD)

D. Sindhunathan v. Chandrakasu

2013-12-12

K.KALYANASUNDARAM

body2013
Judgment 1. This civil revision petition is directed against the order dated 28.6.2010 passed by the principal District Munsif, Cuddalore, in E.A. No. 485 of 2010 in E.P. No. 124 of 2008 in O.S. No. 186 of 1989. 2. The petitioner is a third party. Respondents 1 to 3 herein had filed a suit in O.S. No. 196 of 1989 before the Sub Court, Cuddalore, for partition and separate possession of the suit properties. The father of the petitioner/Dhanusu was the first defendant in the suit. After contest, the suit was decreed on 27.11.1990. The defendants in the suit filed an appeal in A.S. No. 13 of 1991 and it was dismissed by this Court on 4.9.2002. Thereafter, the plaintiffs filed I.A. No. 1797 of 2005 for passing final decree. The learned principal District Munsif, Cuddalore, appointed an Advocate Commissioner and he also filed his report and the final decree was passed on 16.3.2007. Thereafter, the plaintiffs filed E.P. No. 124 of 2008 for delivery of possession. At that stage, the petitioner filed an application in E.A. No. 485 of 2008 under section 47 and Order 21 Rule 97 of C.P.C. seeking to delete ‘B’ Schedule items from the items allotted to the respondents 1 to 3 herein on the ground of equity. The learned principal District Munsif, Cuddalore, dismissed the application. Aggrieved by the said order, the petitioner has filed the present revision. 3. Heard Mr. R. Gururaj, learned counsel for the petitioner and Mrs.Hema Sampath, learned Senior counsel for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner as first defendant had contested the suit on the ground that all the properties were joint family properties and that his father Krishnasami Gounder executed a will on 17.6.1988 in respect of 16 items thereunder bequeathing those items in favour of respondents 4 to 6. The ‘Will’ was marked as Ex.B6 and the trial Court upheld the Will, but stated that it is valid only in respect of Krishnasami Gounder’s 1/7th Share. Likewise, the petitioner’s father Krishnasami Gounder claimed right over the suit items 4, 5, 6 and 9 on the basis of a Settlement deed dated 7.10.1987 and the Court had held that it is valid only in respect of Krishnasami Gounder’s 1/7th share. Likewise, the petitioner’s father Krishnasami Gounder claimed right over the suit items 4, 5, 6 and 9 on the basis of a Settlement deed dated 7.10.1987 and the Court had held that it is valid only in respect of Krishnasami Gounder’s 1/7th share. The learned counsel further contended that the fourth respondent had executed a Settlement Deed in favour of the petitioner dated 7.2.2007 and while passing the final decree, the properties covered under the Settlement Deed could have been allotted to the petitioner on equity grounds. The learned counsel placed reliance on the judgment of the Honourable Apex Court reported in 1955 SC 266(1) – Gurunath v. Kamalabai and Others for the proposition that the Courts have authority to decide cases on principle of justice, equity and good conscience. 5. Per contra, Mrs. Hemasampath, the learned Senior counsel for the respondents, submitted that the suit was filed in the year 1989 and this Court had dismissed the appeal filed by the defendants on 4.9.2002. The final decree application was filed in the year 2007, but the petitioner, without any right, had filed the application under Order 47 of C.P.C. with an intension to drag on the proceedings and therefore, he has no equity in his favour. The learned Senior Counsel further submitted that the trial Court as well as this Court have considered the contentions made by the petitioner about the ‘Will’ executed by Krishnasami Gounder-Ex.B16 and the Settlement Deed of Krishnasami Gounder, which is marked as Ex.B15. The learned Senior counsel further argued that scope of interference under section 47 of C.P.C. is very limited and the Executing Court cannot go beyond the decree. Since the entire dispute has been settled in the final decree proceedings and the Execution Petition was also filed, the petitioner has no right or equity to claim such a prayer. 6. The learned District Munsif, dismissed the application E.A.485 of 2008 holding that EX.B16-Will was considered by the learned Additional Sub Judge, Cuddalore, in O.S.No.186 of 1989 and the Honourable High Court though not explicity made reference about Ex.B15-Settlement Deed, has confirmed the decree passed in the suit and dismissed the appeal. The learned Judge further held that the Executing Court cannot go beyond the decree. The learned Judge further held that the Executing Court cannot go beyond the decree. In the judgment reported in 2001(3) CTC 422-Dhurandhar Prasad Singh v. Jai Prakash University and Others, the Honourable Apex Court has held that under Section 47 of C.P.C. the Executing court can allow objection only if such decree is void ab initio or nullity or where the decree is in-executable under the law. But the petitioner neither pleaded nor proved that the decree passed in the suit is void or nullity. Hence there is no illegality or irregularity in the order of the learned District Munsif. 7. In the result, the civil revision petition is dismissed. No costs. However considering the fact that E.P. is pending from 2008, the learned District Munsif, Cuddalore, is directed to dispose of the Execution Petition within a period of six months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is dismissed.