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Madras High Court · body

2017 DIGILAW 2039 (MAD)

T. Babu Rajendra Prasad v. Jayaseelan

2017-07-14

T.RAVINDRAN

body2017
ORDER : 1. The first respondent had obtained a money decree against the second respondent in O.S.No.233 of 1999. Pursuant to the same, the first respondent levied execution proceedings against the second respondent in E.P.No.148 of 2004, under Order XXI Rules 54 and 66 of the Code of Civil Procedure for attaching and selling the properties described in the execution petition schedule. The second respondent contested the execution petition on the footing that the execution petition schedule properties do not belong to her and she is not having any right, title or possession over the said properties and therefore, it is contended that the first respondent is not entitled to proceed against the execution petition schedule properties on the footing that the second respondent has title to the same. 2. On the pleadings set out in the execution petition above stated it is found that the first respondent in support of his case had examined himself as P.W.1 and marked Exs.P1 to P4 and on the side of the second respondent, she had examined herself as R.W.1 and no document had been marked. 3. Considering the materials placed by way of both oral and documentary evidence, it is found that the Lower Court has held that the second respondent is entitled to 5/16th share in the execution petition schedule properties and accordingly, ordered attachment of the said share for proceeding further in the execution petition by order, dated 09.09.2005. 4. Challenging the above said order of the Lower Court passed in the execution proceedings, it is found that the civil revision petitioner, who is a third party, after obtaining leave from this Court, had preferred the civil revision petition on the basis that the Executing Court had erred in holding that the execution petition schedule properties are the properties owned by the second respondent and on the other hand, according to the revision petitioner, it is he, who is the owner of the execution petition schedule properties as far as Survey No.979/8 concerned and owner of 50% of share in Survey No.991/11. 5. The said case of the revision petitioner is contested by the first respondent. 6. In support of his contentions, the revision petitioner relied upon certain documents given in the additional typed set of papers and contended that the second respondent is not entitled to any right over the execution petition schedule properties. 5. The said case of the revision petitioner is contested by the first respondent. 6. In support of his contentions, the revision petitioner relied upon certain documents given in the additional typed set of papers and contended that the second respondent is not entitled to any right over the execution petition schedule properties. However, the revision petitioner as such has not established prima facie the genuineness of the Will shown as Document No.1 in the additional typed set of papers in the manner known to law. Further, the other documents given in the additional typed set of papers are only revenue records and based upon the same, they being not documents of title, it could be seen that the ownership of the execution petition schedule properties as claimed by the revision petitioner cannot be straightaway accepted. It could therefore be seen as such that the revision petitioner has not produced any valid and reliable documents in support of his claim. Therefore, it is found that the revision petitioner, without any basis has thrown a challenge to the order of the Executing Court ordering attachment of the second respondent's 5/16th share in the execution petition schedule properties for taking further proceedings in the execution petition. 7. In the light of the above said reasons, it is found that the revision petitioner without any basis has made a claim to the execution petition schedule properties with a view to stall the execution proceedings and inasmuch as no valid document of title had been placed to substantiate his claim, this Court is unable to accept the case and therefore, it is found that the revision petition is devoid of merits. 8. The learned counsel for the first respondent has also contended that the revision petitioner should have preferred only an appeal against the order passed by the Executing Court as per Order XXI Rule 58(4) of the Code of Civil Procedure and the revision preferred by him is not maintainable. However, when it is found that the revision petitioner had thrown a challenge to the order passed in the execution proceedings preferred under Order XXI Rules 54 and 66 C.P.C., and not in respect of an application filed under Order XXI Rule 58 C.P.C., it is found that the above contention of the first respondent's counsel cannot be accepted as such. 9. 9. In support of his contentions, the learned counsel for the first respondent placed reliance upon the decision reported in (1996) 2 SCC 468 [Bank of Baroda vs. R.M. Patwa and another]. The principles of law enunciated in the above said decision are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 10. In the light of the foregoing reasons, considering the fact that the Executing Court had ordered only attachment of share of the second respondent in respect of the execution petition schedule properties and inasmuch as the revision petitioner has not produced any valid document of title to buttress his claim, the civil revision petition does not merit acceptance and resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.