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2014 DIGILAW 4541 (MAD)

R. Subramani v. Nagammal

2014-12-08

M.DURAISWAMY

body2014
ORDER : M. Duraiswamy, J. 1. Challenging the fair and final orders passed in E.A. No. 21 of 2013 in E.P. No. 7 of 2011 in O.S. No. 101 of 2008 on the file of District Munsif Court, Sattur, the plaintiff/decree holder has filed the above civil revision petition. 2. The plaintiff filed the suit in O.S.No. 101 of 2008 for recovery of possession. The judgment debtors contested the suit and the Trial Court decreed the suit on 25.10.2010. Pursuant to the decree passed by the Trial Court, the petitioner/decree holder filed execution petition in E.P.No. 7 of 2011. Thereafter, the judgment debtors filed E.A.No. 17 of 2013 under Section 47 CPC stating that in view of the deed of declaration executed on 25.08.2010, the decree is not liable to be executed. In E.A.No. 17 of 2013, the judgment debtors filed an application in E.A.No. 21 of 2013 under Order 26 CPC seeking for appointment of Advocate Commissioner to compare the signature found in the deed of declaration executed on 25.08.2010. 3. According to the judgment debtors, the deed of declaration was executed by the decree holder. The decree holder in his counter has stated that the document is a fabricated document and the judgment debtors had forged his signature. Therefore, the document is liable to be rejected. 4. On a perusal of the material available on record, it could be seen that though the judgment debtors have filed several applications before the Execution Court, they have not whispered about the execution of the deed of declaration on 25.08.2010. 5. That apart, when the Trial Court had passed a decree after contest on 25.10.2010, the reason for not producing the document before the Trial Court at the time of trial by the judgment debtors was not explained by them. When the judgment debtors had several opportunity to produce the documents at the time of trial, that too when the alleged document is directly in their favour, the reason for not producing the document before the Trial Court was not explained. The decree was passed after two months from the date of execution of the document, which is also not disputed. The suit was also hotly contested on various grounds. Now after the filing of the execution petition, the defendants have come forward to rely upon the said document stating that the decree cannot be executed against them. 6. The decree was passed after two months from the date of execution of the document, which is also not disputed. The suit was also hotly contested on various grounds. Now after the filing of the execution petition, the defendants have come forward to rely upon the said document stating that the decree cannot be executed against them. 6. The present application filed by the judgment debtors seeking for appointment of Advocate Commissioner to compare the signature found in the said document is liable to be rejected solely on the ground that the judgment debtors should first prove the execution of the document. 7. In the case on hand, the alleged execution of the document itself was disputed by the decree holder. That apart, the conduct of the judgment debtors would also create a doubt with regard to the execution of the document. As already stated when the document was available with them at the time of trial, for the reasons best known to them they retained the document with them, without bringing to the notice of the Trial Court. This act of the judgment debtors creates a doubt with regard to the execution of the document. 8. That apart, when the execution of the document itself is in question, comparison of document is unnecessary and unwarranted. The execution Court erroneously allowed the application. 9. The learned counsel for the revision petitioner relied upon the following judgments;- (a) 2006-3-L.W.827 (St.Mark's Educational Trust by its Managing Trustee v. S.Ashok Kumar), wherein this Court held that the power of the Court under Section 47 is much narrower than its power under appeal, revision or review. Further, it is held that plea that the respondent herein did not have proper title, and the documents he filed before the Trial Court to prove the title are bogus documents cannot be allowed to be raised for the first time by the petitioner in Section 47 application. (b) (2007) 1 MLJ 484 (M.Baskaran V. M.Sabathy), wherein this Court held that when a decree is passed by a Court of competent jurisdiction, the same cannot be re-examined by the executing Court and the decree has to be executed as it stands. The ratio laid down in the above two judgments squarely applies to the facts and circumstances of the case on hand. 10. The ratio laid down in the above two judgments squarely applies to the facts and circumstances of the case on hand. 10. In these circumstances, the fair and final orders passed in E.A.No. 21 of 2013 in E.P.No. 7 of 2011 in O.S.No. 101 of 2008 are liable to be set aside. Accordingly, the same are set aside. The civil revision petition stands allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.