Rabisha @ Madharsha Makkan Wakf v. Publi @ Sankaralingam Asari (Died)
2015-04-07
K.K.SASIDHARAN
body2015
DigiLaw.ai
Judgment :- 1. The order, dated 04.09.2006, in E.P.No.111 of 1993 in O.S.No.1859 of 1974, on the file of learned I Additional District Munsif, Trichy, is challenged in this civil revision petition primarily on the ground that the decree is un-executable. 2. The petitioner filed a suit in O.S.No.1859 of 1974, before the learned District Munsif, Trichy, against the respondents for eviction. The suit was decreed as prayed for. The un-successful defendants challenged the decree before the First Appellate Court. The appeal was allowed and the matter was remanded back to the Trial Court with a direction to consider the claim made by the tenant in the interlocutory application in I.A.No.324 of 1978 filed under Section 9 of the City Tenants Protection Act. The Trial Court dismissed the suit and allowed the interlocutory application and directed the petitioner to execute a sale deed in respect of 3000 sq.ft., in favour of the respondents subject to deposit of costs. The original tenant died and his legal heirs were impleaded as respondents. The petitioner challenged the Judgment and Decree, before the First Appellate Court, in A.S.No.149 of 1979. The learned First Appellate Judge, by order dated 30.11.1981, modified the decree and directed the petitioner to execute a sale deed in respect of 1500 sq.ft. 3. The respondents, thereafter, filed an execution petition in E.P.No.111 of 1993. The petitioner entered appearance before the learned Executing Judge and contended that the decree is un-executable. The learned Executing Judge, by order dated 04.09.2006, directed the petitioner to execute a sale deed in favour of the respondents in respect of 1500 sq.ft. The order, dated 04.09.2006, is under challenge in this civil revision petition. 4. Heard the learned counsel for the petitioner and the respondents 2 to 7. None appeared on behalf of the first respondent. 5. The order, dated 04.09.2006, passed by the learned Executing Judge in E.P.No.111 of 1993 in O.S.No.1859 of 1974 is under challenge primarily on the ground that the decree is un-executable. 6. The Trial Court granted a decree in favour of the respondents in respect of 3000 sq.ft. The said decree was modified by the First Appellate Court in C.M.A.No.1 of 1981.
6. The Trial Court granted a decree in favour of the respondents in respect of 3000 sq.ft. The said decree was modified by the First Appellate Court in C.M.A.No.1 of 1981. Though the Judgment proceeds as if the respondents are entitled to 50 feet north to south along with the western wall of the blacksmithy from Tiruchy-Tanjore Road compound wall and 30 feet east to west from the western point in Trichy-Tanjore main road towards east in the said road in a straight line towards north upto the compound wall on the nearby closed gate admeasuring 1500 sq.ft., the fact remains that the decree was not passed in terms of the Judgment. The decree has simply stated that the respondents are entitled to 1500 sq.ft. The measurement of the property has not been given in the decree. Even the boundary was not specified by the learned First Appellate Judge in C.M.A.No.1 of 1981. The Executing Court should have verified the decree before directing the petitioner to execute the sale deed in favour of the respondents. The sale deed should mention the correct boundaries of the property. It is only the appeal decree, which is sought to be executed. The appeal decree is bereft of particulars. The petitioner is, therefore, correct in contending that the decree is un-executable. 7. The parties are given liberty to approach the First Appellate Court to modify the decree, dated 30.11.1981, by way of filing proper application. The First Appellate Court, on receipt of such application, should draft a decree, strictly, in terms of the Judgment, dated 30.11.1981 in C.M.A.No.1 of 1981. 8. The order, dated 04.09.2006, in E.P.No.111 of 1993 in O.S.No.1859 of 1974, is set aside. 9. In the upshot, I allow the civil revision petition. No costs. Consequently, connected miscellaneous petition is closed.