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2014 DIGILAW 4314 (MAD)

Ramachandran v. Dinakaran

2014-11-18

K.KALYANASUNDARAM

body2014
JUDGMENT : K. Kalyanasundaram, J. 1. This Civil Revision Petition is directed against the Order dated 24.9.2014 passed in R.E.A. No. 33 of 2014 in R.E.P. No. 97 of 2013 in O.S. No. 7 of 2008 by the Subordinate Court at Kallakurichi. The Petitioner is a third party to the Suit in O.S. No. 7 of 2008 filed by the First Respondent against the Respondents 2 to 4. The First Respondent, as Plaintiff filed the Suit, for partition claiming 1/4th share in the Suit properties. A Preliminary Decree was passed in the Suit on 10.11.2009. In the Application filed in I.A. No. 553 of 2010 the learned Sub-Judge passed Final Decree on 13.8.2013. On the basis of the Decree passed in the Suit, the Plaintiff filed E.P. No. 97 of 2013 for delivery of possession. 2. In the Execution Petition, the Petitioner filed E.A. No. 33 of 2014 under Section 47 of the Civil Procedure Code praying the Executing Court to delete the properties purchased by the Petitioner from the Defendants 1 & 3 through Sale Deeds dated 22.2.2008 and 28.5.2009. The Application was resisted by the First Respondent. The learned Sub-Judge, Kallakurichi dismissed the Application. Aggrieved by the Order, the present Civil Revision Petition is filed. 3. Mr. P. Valliappan, learned Counsel for the Petitioner, submitted that the Petitioner had purchased 1/2 share in the Suit property from the Defendants 1 & 3 by registered Sale Deeds, but at the time of sale, the Petitioner was not informed about the pendency of the Suit. It is further submitted that the First Defendant remained ex parte and the Third Defendant also did not take part in the Final Decree proceedings. Since the Petitioner was not aware of the Suit proceedings, he filed a separate Suit in O.S. No. 13 of 2014 on the file of the District Court, Villupuram, challenging the Preliminary Decree and Final Decree passed in the present Suit. The learned Counsel further submitted that though the Petitioner had knowledge about the Final Decree proceedings in the month of May, 2013, as per Article 137 of the Limitation Act, the Petitioner is having 3 years period to challenge the Decree. The learned Counsel relied upon the Judgment. R. Ranganatha Naidu v. R. Subramuniya Mudaliar, 1998 (1) CTC 589 ; and Rasomay Mitra v. Lachmi Todi, AIR 1982 Cal. 178 , in support of his contention. 4. Mr. The learned Counsel relied upon the Judgment. R. Ranganatha Naidu v. R. Subramuniya Mudaliar, 1998 (1) CTC 589 ; and Rasomay Mitra v. Lachmi Todi, AIR 1982 Cal. 178 , in support of his contention. 4. Mr. V. Manohar, learned Counsel for the Respondents submitted that the Petitioner was not a party to the Suit, proceedings. Moreover, the prayer sought for in the Application filed under Section 47 is unknown to law. The Petitioner, who was not able to succeed in the Suit, has filed this Application, so he is not entitled for any indulgence of the Court. It is further submitted that the Executing Court has considered the case of the Petitioner and rightly dismissed it, which does not warrant interference of this Court. 5. It is seen from the records that the Petitioner had purchased undivided 1/4th share from the First Respondent on 22.6.2008 and another 1/4th share from the 3rd Respondent on 28.5.2009. Ex. P3 proceedings of Thiyagadurgam Town Panchayat office would show that the Petitioner had knowledge about the Suit on 10.5.2013. When the Petitioner had knowledge about the Suit even before passing of Final Decree i.e. 13.8.2013, the Petitioner ought to have take steps immediately for redressal of his grievance. The Petitioner chose to file a separate Suit in O.S. No. 13 of 2014 in the month of February, 2014, however he was not able to get Interim Order in the Suit, proceedings. Only thereafter, he has filed this Application on 6.3.2014. It is true that in Rasomay Mitra v. Lachmi Todi, AIR 1982 Cal. 178 , the Calcutta High Court has held that as per Article 137 of the Limitation Act, the Application under Section 47, can be filed within a period of three years. There is no quarrel over the proposition laid down by the Calcutta High Court. In the case on hand, the Petitioner had knowledge about the Suit proceedings and after filing a Suit challenging the Preliminary Decree and Final Decree, he has filed this Application. The Executing Court has rightly observed that the Court cannot go beyond the decree. Hence, I do not find any illegality or irregularity in the impugned Order. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. The Executing Court has rightly observed that the Court cannot go beyond the decree. Hence, I do not find any illegality or irregularity in the impugned Order. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. However, the Petitioner can workout his remedy in the Suit in O.S. No. 13 of 2014 in the manner known to law.