Anthonysamy vs Ilayaperumal @ Vellapandi Nadar (Died)

This Civil Revision Petition has been filed against the executable and fair order, dated 01.06.2016, made in E.P.No.142 of 1990 in

O.S.No.1052 of 1987, on the file of the Principal District Munsif Court, Ambasamudram.

The petitioner is the first defendant in the suit in O.S.No. 1052 of 1987 and first respondent in E.P.No.142 of 1990 on the file of the Principal

District Munsif Court, Ambasamudram. The father of the respondents 1 to 6 viz., Ilayaperumal @ Vellapandi Nadar is the plaintiff/decree-holder

and the respondents 7 and 8 are the defendants 2 and 3. The plaintiff/father of the respondents 1 to 6 viz., Ilayaperumal @ Vellapandi Nadar

[since deceased] filed O.S.No.1052 of 1987 against the petitioner [first defendant] and the respondents 7 and 8 [defendants 2 and 3] and one

Koil Pitchai Nadar (since deceased) [fourth defendant] for declaration to declare that the suit pathway as common pathway to both the plaintiff -

Ilayaperumal @ Vellapandi Nadar and the petitioner/first defendant and also for mandatory injunction to remove the encroachment made by the

petitioner and the respondents 7 and 8 and the said Koil Pitchai Nadar. An ex-parte decree was passed in the said suit on 26.04.1988. The

petitioner filed I.A.No.1221 of 1988 to set aside the ex-parte decree. The said application was ordered on payment of costs. The petitioner failed

to pay the cost. Therefore, the said application was dismissed on 03.08.1989. The father of respondents 1 to 6/plaintiff filed E.P.No.142 of 1990,

to execute the decree passed in O.S.No.1052 of 1987. Pending E.P., the father of the respondents 1 to 6/plaintiff died. The respondents 1 to 6

were impleaded as petitioners 2 to 7 in the E.P., vide order dated 06.02.2015, made in E.A.No.27 of 2015. The petitioner and the respondents 7

and 8 and Koil Pitchai Nadar/fourth defendant contended that the decree, dated 26.04.1988, passed in O.S.No. 1052 of 1987 is not executable,

in view of the decree, dated 29.06.1988, passed in O.S.No.225 of 1982, which was filed by the petitioner against the father of the respondents 1

to 6.

The learned Principal District Munsif, Ambasamudram, considering the averments mentioned in the affidavit and the counter affidavit and

considering the materials available on record and also considering the judgment and decree, dated 26.04.1988, passed in O.S.No.1052 of 1987,

held that the Execution Court cannot go beyond the decree and ordered arrest considering the fact that the E.P. filed in the year 1990 to execute

the decree, dated 26.04.1988.

Against the said order of arrest, dated 01.06.2016, the petitioner has come out with the present Civil Revision Petition.

The learned counsel for the petitioner submitted that the petitioner filed O.S.No.225 of 1982, which is earlier to the filing of O.S.No.1052 of

1987 filed by Ilayaperumal @ Vellapandi Nadar, the father of the respondents 1 to 6. In the said suit [O.S.No.225 of 1982], the ex-parte decree,

dated 26.04.1988, passed in O.S.No. 1052 of 1987 was marked as Ex.B.8. After considering all the materials, the suit in O.S.No.225 of 1982

filed by the petitioner was decreed. He further submitted that the said Ilayaperumal @ Vellapandi Nadar, father of the respondents 1 to 6, in the

proceedings before this Court, admitted that the suit property in O.S.No.225 of 1982 and the suit property in O.S.No.1052 of 1987 are different.

The said Ilayaperumal @ Vellapandi Nadar and subsequently, the respondents 1 to 6 proceeded with the E.P. only to harass the petitioner. By

arrest of the petitioner, the alleged encroachment would not be removed and the respondents would have filed petition under Order XXI Rule

32(5) C.P.C. in stead of Order XXI Rule 32(1) C.P.C. He also submitted that the respondents 2 to 6 have taken steps for arrest only against the

petitioner alone. The respondents 1 to 6 tried to interfere with the possession of the property of the petitioner and have created law and order

problem and therefore, he prayed for allowing the Civil Revision Petition.

In support of his submissions, the learned counsel for the petitioner relied on paragraphs 22 to 24 and 28 of the order passed by this Court,

dated 07.02.2011, in C.R.P.NPD.No.570 of 2004 and submitted that the petitioner has not committed any willful disobedience.

The learned counsel for the respondents 1 to 6/caveator submitted that the E.P. filed against all the defendants and the fourth defendant died and

the respondents 7 and 8 remained exparte and they are not residing in the suit property and also not obstructing the pathway. The contention of the

petitioner that in view of the judgment and decree, passed in O.S.No.225 of 1982, the decree dated 26.04.1988, passed in O.S.No.1052 of

1987, cannot be executed is not correct. He further submitted that the property in both the suits are different and the respondents 1 to 6 are not

seeking removal of any construction from the suit property in O.S.No.225 of 1982. When the respondents 1 to 6 tried to remove the obstruction

made by the petitioner, the petitioner and others prevented the respondents 1 to 6 by force. He also submitted that the learned Principal District

Munsif has considered all the facts and ordered arrest, giving cogent and valid reason.

In support of his submissions, the learned counsel for the respondents 1 to 6 relied on the following judgments: (i) AIR 1953 SC 65 [Mohanlal

Goenka Vs. Benoy Kishna Mukherjee and others] (ii) 1987 (4) SCC 585 [Kamlabai and others Vs. Mangilal Dulichand Mantri]

I have considered the submissions of the learned counsel appearing for the parties and perused the materials available on record.

The father of the respondents 1 to 6 filed the suit in O.S.No.1052 of 1987 and obtained the decree, dated 26.04.1988. As per the decree

passed in the said suit, the suit property is a common pathway of the petitioner and in O.S.No.1052 of 1987, the said Ilayaperumal @ Vellapandi

Nadar/father of the respondents 1 to 6 also sought for injunction restraining the petitioner from interfering with the right of the said Ilayaperumal @

Vellapandi Nadar and also for mandatory injunction to remove the obstruction put up by the petitioner. The application filed by the petitioner to set

aside the ex-parte decree, was allowed on payment of costs and subsequently, it was dismissed for non-compliance of the conditional order. In the

circumstances, the said decree has become final. The said Ilayaperumal @ Vellapandi Nadar and subsequently, the respondents 1 to 6 have stated

that the petitioner is preventing them from using the pathway and not removing the obstruction put up by the petitioner. It is admitted by

Ilayaperumal @ Vellapandi Nadar and the respondents 1 to 6 that the suit property in O.S.No. 1052 of 1987 and the suit property in

O.S.No.225 of 1982 are different. In the circumstances, it is clear that the petitioner has disobeyed the decree passed in O.S.No.1052 of 1987. It

is open to the decree-holder to file a petition under Order XXI Rule 32(1) or 32(5) C.P.C. The petitioner cannot dictate terms to the decreeholder

and nature of E.P. to be filed by him. The learned Principal District Munsif has rightly ordered arrest by giving cogent and valid reason. In the

circumstances, there is no irregularity or illegality in the order dated 01.06.2016, passed in E.P.No.142 of 1990 in O.S.No.1052 of 1987,

warranting interference by this Court.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.