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2021 DIGILAW 3282 (MAD)

P. K. S. Mohammed Sheriff v. S. Mittalal

2021-11-24

S.S.SUNDAR

body2021
ORDER : 1. This Civil Revision Petition is directed against the order in the petition filed by the revision petitioner in EA.No.72/2016 under Section 47 CPC. 2. Brief facts that are necessary for the disposal of this Civil Revision Petition are as follows. 3. The respondent, as plaintiff filed a suit in OS.No.628/1986 as against one Sankaran and Samuel Nadar before the District Munsif Court, Ponneri. Subsequently, the said suit was transferred to the Court of District Munsif cum Judicial Magistrate, Thiruvottiyur and was renumbered as OS.No.1234/1997. The suit was for ejectment of defendants from the suit property and for recovery of rent and for recovery of damages for use and occupation for the period up to 1985. 4. The said suit was decreed for recovery of possession and the appeal preferred by the defendants in AS.No.3/2003 before the Sub Court, Ponneri, was dismissed on 30.06.2004. The Second Appeal preferred by the defendants in SA.No.1139/2005 before this Court was also dismissed vide judgment and decree dated 14.10.2015. Thereafter, the respondent/plaintiff filed EP.No.17/2005 before the District Munsif, Tiruvottiyur. The Execution Court ordered delivery on 07.02.2006. When the Amin went to deliver the suit property, the revision petitioner herein obstructed the delivery of property. Thereafter, the respondent/plaintiff filed an Execution Application in EA.No.24/2006 in EP.No.17/2005 before the said Court to remove the third party obstructor from the scheduled mentioned property. The said petition was filed on 14.03.2006 under Order 21 Rule 97 CPC. 5. A counter was filed by the revision petitioner herein/defendant claiming independent right over the property. It is admitted that the Execution Application in EA.No.24/2006 in EP.No.17/2005 was dismissed for default on 18.03.2009. Thereafter, a fresh Execution Petition in EP.No.92/2013 filed before the District Munsif, Tiruvottiyur. In the subsequent Execution Petition, the respondent/plaintiff filed EA.No.69/2014 in EP.No.92/2013 under Order 21 Rule 97 CPC for the removal of obstruction caused by the petitioner. The revision petitioner filed EA.No.72/2019 in EP.No.92/2013 under Section 47 CPC to dismiss the execution petition. The petition filed by the respondent/plaintiff under Order 21 Rule 97 CPC in EA.No.69/2014 in EP.92/2013 and EA.No.72/2016 filed by the revision petitioner/defendant under Section 47 CPC, were tried together and disposed of by a common order. The Trial Court dismissed the petition filed by the revision petitioner/defendant under Section 47 CPC and allowed EA.No.69/2014 in EP.No.92/2013 filed under Order 21 Rule 97 CPC. The Trial Court dismissed the petition filed by the revision petitioner/defendant under Section 47 CPC and allowed EA.No.69/2014 in EP.No.92/2013 filed under Order 21 Rule 97 CPC. Aggrieved by the order dismissing the application filed by the revision petitioner/defendant under Section 47 CPC, the present Civil Revision Petition is filed. 6. It is well settled that a petition under Section 47 CPC cannot be filed by a third party who does not claim any right under any of the defendant in the suit. Though Section 47 CPC contemplates dealing with question relating to execution, discharge and satisfaction of the decree, the Hon'ble Supreme Court and this Court has interpreted the provision under Section 47 CPC to mean that executability of the decree under Section 47 CPC cannot be questioned by a stranger to the proceeding. Section 47 specifically refers to ''all questions arising between the parties to the suit.'' 7. Therefore, one of the essential condition for the applicability of this Section is that the question for decision should arise between parties to the suit or their representatives. A stranger who claims independent title or right cannot maintain a petition under Section 47 CPC and try to establish his right which is outside the scope of the suit/decree. 8. In view of the legal position on the scope of Section 47 CPC, the present Civil Revision Petition is liable to be dismissed as the petition filed under Section 47 CPC itself is not maintainable. However, it is stated that the revision petitioner/defendant has also filed an appeal against the order allowing the petition filed by the respondent/plaintiff under Order 21 Rule 97 CPC. It is stated that the appeal preferred by the revision petitioner/defendant is yet to be numbered and the petition to condone the delay in filing the appeal is pending in IA.No.92/2021. 9. Learned counsel appearing for the revision petitioner states that the dismissal of the present Civil Revision Petition may be without prejudice to the rights to prosecute the appeal filed by the revision petitioner/defendant. 10. The remedy of the revision petitioner/defendant who claim independent right, is to prosecute the appeal that is preferred by the petitioner against the order in the petition filed before the Lower Court under Order 21 Rule 97 CPC. 10. The remedy of the revision petitioner/defendant who claim independent right, is to prosecute the appeal that is preferred by the petitioner against the order in the petition filed before the Lower Court under Order 21 Rule 97 CPC. Since the present Revision Petition itself is dismissed not on merits, but on the ground that the revision petitioner who claims independent right, cannot maintain an application under Section 47 CPC, it is always open to him to prosecute the appeal on merits. 11. With the above observations, the present Civil Revision Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.