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2017 DIGILAW 2505 (MAD)

K. Bharatharajan v. Sundarapandian

2017-08-08

T.RAVINDRAN

body2017
ORDER : Impugning the fair and decreetal orders, dated 11.09.2006, passed in E.P.No.88 of 2004 in O.S.No.131 of 2002, on the file of the Sub Court, Devakottai, the present civil revision petition has been preferred. 2. Armed with a decree obtained in O.S.No.131 of 2002, it is found that the petitioner/plaintiff has levied execution proceedings, in E.P.No.88 of 2004, under Order XXI Rules 54, 66 and 72 of the Code of Civil Procedure. The said application has been resisted by the respondent/defendant contending that the properties against which the execution proceedings are initiated, in particular the second item of the properties concerned, had been relinquished by him in favour of his son on 09.03.2001 itself and the same is in possession and enjoyment of his son and he does not have any right, title or interest in respect of the same and further, it is also stated that Item Nos.3 and 4 of the properties concerned had also been alienated in the year 2001 in favour of a Madam and the same are also not in his possession and enjoyment and hence, it is stated that the above said properties are not liable for attachment and sale and therefore, the execution proceedings levied by the petitioner/plaintiff is liable to the dismissed. 3. In support of the case of the petitioner, no oral and documentary evidence has been adduced and on the side of the respondent, R.W.1 has been examined and Ex.R1 has been marked. 4. The Court below, on the basis of the materials placed, finding that the second item of the properties concerned had been relinquished by the respondent/defendant even prior to the institution of the suit in favour of his son and therefore, he has no right, title or interest in respect of the same, held that the petitioner/plaintiff is not entitled to proceed against the said item of the properties concerned. As regards the case of the respondent/defendant that he has already alienated even the Item Nos.3 and 4 of the properties concerned in favour of a Madam, inasmuch as no material as such has been placed in support of the same, finally the Court below had held that the properties described as Item Nos.1, 3 and 4 are liable for attachment and further action, however, dismissed the execution petition in sofar as the second item of the properties concerned. Aggrieved over the same, the revision petition has been preferred by the petitioner/plaintiff. 5. It is contended by the learned counsel for the revision petitioner that the Executing Court has failed to appreciate that if according to the respondent/defendant the second item of the properties concerned belonged to his son following the relinquishment deed, it is for the son of the respondent/defendant to contest his case by laying a claim over the said property and not by the respondent/defendant and therefore, the impugned order is liable to be set aside asfar as the second item of the properties concerned. However, countering the same, it is put forth by the learned counsel for the respondent/defendant that the revision petitioner/plaintiff having levied the execution proceedings has to prima facie establish that the properties, which are brought for action under the execution proceedings, belonged to the judgment debtor and only thereafter, he is entitled to proceed further. The revision petitioner having failed to establish that the second item of the properties concerned belonged to the respondent/defendant and on the other hand, when acceptable and reliable material in the form of Ex.R1 has been placed by the respondent/defendant to substantiate that the said item of the properties had been relinquished in favour of his son even prior to the institution of the suit and when contrary to the same, the revision petitioner has not placed any material to show that even still the respondent/defendant is having right, title or interest or enjoying the said property, according to him, the Court below has rightly discountenanced the request of the revision petitioner/plaintiff to proceed further as against the second item of the properties concerned. 6. 6. Considering the rival contentions put forth by the respective parties, as rightly put forth by the learned counsel for the respondent/defendant, when it is found that the revision petitioner/plaintiff has not placed any material as such to enable the Court below to proceed as against the second item of the properties concerned i.e., the same being entitled to the judgment debtor and when the judgment debtor has established that the said item of the properties concerned has already been relinquished to his son even prior to the institution of the suit by producing a convincing material in the form of Ex.R1 and no contra material to Ex.R1 has been placed by the revision petitioner, it is found that the Court below has rightly declined the request of the revision petitioner to proceed as against the second item of the properties concerned in the execution petition. Accordingly, it is further found that inasmuch as the case of the respondent/defendant in respect of Item Nos.3 and 4 of the properties concerned has not been established, it is found that the Court below has rejected his contentions and proceeded further asfar as the other items of the properties concerned in the execution petition cumulatively. Therefore, it is found that the impugned order of the Court below is in order both legally as well as factually and in such view of the matter, the same does not warrant any interference from this Court. 7. Resultantly, the civil revision petition is dismissed with costs.