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2023 DIGILAW 3075 (MAD)

N. Karunamoorthy v. V. Mathiazhagan

2023-09-11

V.BHAVANI SUBBAROYAN

body2023
JUDGMENT (Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the exparte decree dated 05.02.1992 passed in O.S.No.200 of 1990 on the file of learned Subordinate Judge, Poonamallee and transferred to the learned District Munsif, Ambattur by allowing the present Revision.) 1. This Civil Revision has been filed to set aside the exparte decree dated 05.02.1992 passed in O.S.No.200 of 1990 on the file of learned Subordinate Judge, Poonamallee and transferred to the learned District Munsif, Ambattur by allowing the present Revision. 2. Registry, after scrutinizing the papers filed along with the Civil Revision Petition, returned the same to the learned counsel for the petitioner with the following objections:- “It may be stated how the Civil Revision Petition is maintainable against appealable order. To be filed before appropriate forum” 3. While representing the papers, the learned counsel for the petitioner made the following endorsement:- “Since the Decree and Judgment under challenge is not in accordance with Order 20 Rules 4 and 5 of CPC, the same cannot be challenged in appeal. Moreover the petitioner is not a party to the suit. Only Revision is maintainable under Article 227 of Constitution of India” 4. This Court, by order, dated 01.08.2023 directed the Registry to list the matter under the caption 'for Maintainability'. Accordingly, the same has been listed on 10.08.2023. 5. Heard the learned counsel for the petitioner and perused the documents placed on record. 6. On perusing the records, it is seen that the petitioner is not a stranger. The present petitioner moved E.A.No.19 of 2008 under Order 21 Rule 97 of CPC, which came to be dismissed, as against which, C.M.A. No. 5 of 2014 came to be filed by the present petitioner and the same was confirmed. Thereafter, the petitioner moved C.M.S.A.No. 41 of 2014, this Court by an order dated 04.03.2021 has dismissed the said C.M.S.A. No. 41 of 2014 by confirming the orders, which was passed in E.A No.19 of 2008 by elaborately discussing the factual matrix of the present lis. Thereafter, the petitioner moved C.M.S.A.No. 41 of 2014, this Court by an order dated 04.03.2021 has dismissed the said C.M.S.A. No. 41 of 2014 by confirming the orders, which was passed in E.A No.19 of 2008 by elaborately discussing the factual matrix of the present lis. It is necessary to extract Order 21 Rule 97 of CPC:- “Resistance or obstruction to possession of immovable property.— (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. 6 [(2) Where any application is made under subrule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” 7. It is relevant to note that the petitioner, again moved an application in E.A. No.4 of 2021 under Section 47(3) of CPC seeking for a prayer to declare the decree dated 05.02.1992 passed in O.S.No.200 of 1990, as not executable and to dismiss the E.P. On going through the order and decreetal order made in E.A. No.4 of 2021 in EP 55 of 2005 in O.S.No.200 of 1990, it is clearly evident that the learned District Munsif, Ambattur has dismissed the same by elaborately discussing the various aspects including the grounds on which application taken under Section 47(3) CPC and the learned District Munsif, Ambattur has also ordered to pay a cost of Rs.5,000/- by the petitioner. Aggrieved against which, the present Revision is filed. 8. It is pertinent to point out that the petitioner, who allegedly claim to be a bonafide purchaser ought to have verified the lis on the suit schedule property, as such the suit is of the year 1990. Further, on a perusal of the entire records in EA No.4 of 2021, it is seen that the same has been filed under Section 47(3) CPC, which reads as follows:- 47. Questions to be determined by the Court executing decree. — (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. as against which an appeal only would lie under Section 96 CPC. 9. Questions to be determined by the Court executing decree. — (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. as against which an appeal only would lie under Section 96 CPC. 9. When the petitioner, who have already approached the court by filing E.A. No.19 of 2008 and thereafter, C.M.A.No. 51 of 2014 subsequently in C.M.S.A. No.41 of 2014 wherein this Court had sustained the orders passed in EA No.19 of 2008, now the petitioner has chosen to take out an E.A.No.4 of 2021 before the EP court only to protract the proceedings, thereby denying the lawful rights to the decree holder. Hence the present Revision under Article 227 of Constitution of India is not maintainable, as the petitioner has an alternative remedy of filing an appeal. That apart, the Judgment rendered by this Court relied on by the learned counsel for the petitioner, reported in 2015 – 3- L.W.705 [G.Selvam & Others Vs. Kasthuri and others] does not apply to the facts and circumstances of the present case on hand. In view of the above, the present Revision is not maintainable and the same is hereby rejected. No costs.