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2020 DIGILAW 2051 (MAD)

Vijayalakshmi v. Pushparani

2020-11-03

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer: Petition filed under Section 115 of C.P.C, against the order and decreetal order dated 28.01.2020 and made in E.P.No.4361 of 2014 on the file of IX Asst. Judge, City Civil Court, Chennai and dismiss the E.P.No.4361 of 2014 in O.S.No.2978 of 1999.) 1. This petition is filed under Section 115 of C.P.C. against the order of delivery possession in E.P.No.4361 of 2014 on the file of the IX Assistant Judge, City Civil Court, Chennai 2. The Judgment Debtor 1 & 2 are the Revision Petitioners herein. 3. The learned counsel for caveator had entered appearance for the respondents. 3. The admitted factual matrix of the case are as under:- (i) O.S.No.2978 of 1999 was filed by the Decree Holder in the year 1999 before XI Assistant City Civil Court, Chennai and obtained preliminary decree in 18.07.2003. Against the preliminary decree the J.Ds 1 & 2 filed A.S.No.488/07 before the 1st Appellate Court and the same was dismissed on 17.04.2008. After that Second Appeal preferred against the A.S.No.488/07 decree through S.A.No.1347/08 the same was disposed of with the direction. Final Decree application filed by the plaintiff/Decree Holder in I.A.No.23925/2005 in O.S.No.2978/1999 the same was allowed on 10.10.2011 prior to that on 08.09.2011 Advocate Commissioner has been filed report for dividing the suit property. (ii) S.A.No.1347 of 2008 dated 02.03.2011 against the preliminary decree that was confirmed by the First Appellate Court was modified as follows:- "Accordingly the judgment and decree of the Court below shall stand modified slightly to the effect that only possession right should be got divided into two shares and accordingly the parties are at liberty to seen for final decree and final decree could be passed and before executing the final decree it is or the plaintiff or the 3 to 6 as per the case may be approach the authority under Section 29 of Tamil Nadu Slum Clearance (Improvement and Clearance) Act 1971 and get suitable orders." (iii) For the above direction the decree holder gave application before the Slum Clearance Board on 03.08.2018. The same application was duly replied by the Managing Director of the Slum Clearance Board as stated that "Since the sale deed was executed in favour of the decree holder by the Tamil Nadu Slum Clearance Board is nothing to do with the case". The same application was duly replied by the Managing Director of the Slum Clearance Board as stated that "Since the sale deed was executed in favour of the decree holder by the Tamil Nadu Slum Clearance Board is nothing to do with the case". (iv) The receipts of the reply letter as follows:- “TAMIL” (v) Based upon the above said order passed by the Tamil Nadu Slum Clearance Board, the decree holder has filed E.P for delivery in the Execution Court. Exhibit P1 Sale Deed copy was marked and Exhibit P2 original letter given to Tamil Nadu Slum Clearance Board was marked and Exhibit P3 reply from the Tamil Nadu Slum Clearance Board was marked. 4. Aggrieved against the said order of the delivery, the Judgment debtor has preferred this revision. 5. Admittedly the Judgment Debtor has not preferred any Appeal or Review or Revision before any Appellate Authority against the Preliminary Decree has modified in S.A.No.1347/08. 6. The Civil Revision Petition has been filed against the said Preliminary Decree in C.R.P(NPD)No.3261/2016 was also dismissed and hence, the final decree passed in the partition suit finality and thus the points arises for consideration is to whether the Decree Holder has complied with the order passed in the Second Appeal No.1347 of 2008. 7. As extracted supra, as per the clause contained in S.A.No.1347/2008, the Decree Holder is filed necessary application before the Tamil Nadu Slum Clearance Board under Section 29. The reply was marked as Exhibit P3 and contents of the reply as extracted supra goes to show that the Decree Holder has duly complied with the direction contained in the C.R.P.No.3261/2016 and S.A.No.1347/2008 and hence, the finding rendered by the Execution Court that the order of eviction has to be ordered. Hence, all the conditions has been complied with the Decree Holder does not warrant any interference. 8. The learned counsel for the petitioner could contend that the suit is barred against the Tamil Nadu Slum Clearance Board under Section 65. 9. On perusal of the plaint in O.S.No.2978/99 it is seen that the decree has modified in S.A.No.1347/2008 and the suit was not filed against the Tamil Nadu Slum Clearance Board and hence, the points raised by the Judgment Debtor does not arise for consideration. 10. 9. On perusal of the plaint in O.S.No.2978/99 it is seen that the decree has modified in S.A.No.1347/2008 and the suit was not filed against the Tamil Nadu Slum Clearance Board and hence, the points raised by the Judgment Debtor does not arise for consideration. 10. Admittedly, the preliminary decree was passed in the suit has been confirmed with modification as stated supra and thereafter final decree was also passed and the same was confirmed in the Civil Revision petition (NPD) No.3261/2016 and condition stated in the Second Appeal has also been complied with. 11. The learned counsel contended that there is no prayer for delivery of possession and submitted in the absence of any claim for relief of possession the same cannot be granted by the Execution Court. 12. This Court has given its anxious consideration to the said contention. However to the dismay, as pointed by the learned Caveator/respondent, there is a specific prayer in the plaint for delivery of possession of the share allottee to the plaintiff and hence, on factual ground the points raised by the revision petitioner stands negatived. 13. It is stated that as per the final decree proceedings schedule A is allotted to Decree Holder and schedule B is allotted to the judgment debtor Execution Petition has been filed for the delivery of A schedule property allotted to the Decree Holder as per the final decree. 14. At the risk of repetition however for the sake of clarity it is to be stated that the final decree proceedings has become attain finality and hence, this Court finds that the order passed for delivery passed by the Execution Court does not warrant any interference and as such the Decree Holder is entitled to delivery of possession of A schedule property as per the final decree proceedings and hence, this Civil Revision Petition is devoid of merits. 15. Accordingly, this Civil Revision Petition is dismissed and the order passed by the learned IX Assistant Judge, City Civil Curt, Chennai in E.P.No.4361 of 2014 in O.S.No.2978 of 199, are confirmed. No costs. Consequently, connected C.M.P is closed.