A.T. Kalyani vs L. Muthiah

D. Hariparanthaman, J.—The Revision Petitioner filed E.A. Sr. No.35043 of 2015 in E.P. No. 1896 of 2001 under Section 47 of C.P.C. before the X Assistant Judge, City Civil Court alleging that the Decree passed in O.S. No.237 of 1985 is not executable. By an Order dated 6.8.2015, the said Petition was dismissed. This Civil Revision Petition is against the aforesaid Order, dated 6.8 2015.

Heard both sides.

The Revision Petitioner is the wife of Late A.T. Mani Nadar, who is the Second Defendant in O.S. No. 237 of 1985 on the file of VII Assistant Judge, City Civil Court, Chennai. The said Suit in O.S. No.237 of 1985 was filed directing the Defendants therein to vacate and hand over vacant possession of the store room premises at Door No.35, V.O.C. Nagar, Anna Nagar, Madras-102. One Desika Singh Nadar was the First Defendant in the said Suit in O.S. No.237 of 1985. The Suit was decreed by the Trial Court on 18.2.1988.

3-A. While the husband of the Revision Petitioner filed A.S. No.186 of 1989 before the Appellate Court, the First Defendant therein filed A.S. No.88 of 1989. Both the Appeals were heard together and dismissed by the IX Additional Judge, City Civil Court on in 1990.

Thereafter, the First Defendant in O.S. No. 237 of 1985, who filed A.S. No.88 of 1989, filed S.A. No. 1313 of 1990 before this Court. This Court rejected the said Second Appeal on 7.9.1990. Thus, the Decree dated 18.2.1988 attained finality.

While so. E.P. No. 1896 of 2001 was filed for delivery of possession and the same was allowed by the Executing Court on 9.9.2004. While so, the husband of the Revision Petitioner, who was the Second Defendant in O.S. No. 237 of 1985 died on 10.9.1998.

The Revision Petitioner along with others filed C.R.P (NPD) No.2191 of 2004 against the Order dated 9.9.2004 made in EP No. 1896 of 2001 C.R.P.(NPD) No. 2192 of 2004 was also filed questioning the Order dated 9.9.2004 made in E.P. No. 1896 of 2001 in O.S. No. 237 of 1985. This Court, by an Order dated 14.8.2009 rejected both the CRPs.

It is useful to extract Paragraph 33 of the Order dated 14.8.2009 made in C.R.P. (NPD) Nos. 2191 & 2192 of 2004:

"33. Further, following the Older passed by the Apex Court in 2007 (14) SCC 304, I am inclined to pass the following Order:

"The Petitioners/Judgment-debtors shall vacate and hand over the Suit property to the Respondents 1 & 2 within a month from the date of receipt of a copy of this Order and in the event of any failure on the part of the Petitioners to comply with such direction, the Respondents 1 & 3 are hereby directed to evict the Petitioners/Judgment-debtors or other than the Judgment-debtors with police protection, if necessary.

In fine, the above Revision Petitions are dismissed with costs. Connected MPs. are also dismissed."

It is also not in dispute that O.S. Nos. 11989 & 11990 of 2009 were filed by R Varuvel (O.S. No.11989/2009) and K. Ramesh and K. Ganesh O.S. No. 11990/2009) seeking to declare that the Decree dated 18.2.1988 passed in O.S. No 237 of 1985 by VII Assistant Judge, City Civil Court as null and void and not binding on them and they also sought for Permanent Injunction restraining the Defendants therein from interfering with the peaceful possession and enjoyment of the Schedule mentioned property. In O.S. No. 11989 of 2009, the property is to an extent of 345 sq.ft, whereas, in O.S. No. 11990 of 2009, the property is to an extent of 105 sq.ft. Both the properties are part of Suit Schedule properties in O.S. No. 237 of 1985.

While the VI Assistant Judge, City Civil Court, by the Judgment and Decree dated 25.4.2012 rejected the claim relating to declaration sought for in O.S. Nos. 11989 & 11990 of 2009, granted Permanent Injunction with respect to the Suit Schedule property. Thus, the Judgment and Decree, dated 18.2.1988 in O.S. No. 237 of 1985 that attained finality got modified vide Judgment dated 25.4.2012. as stated above.

In view of the Judgment and Decree dated 25.4 2012 made in O.S. Nos. 11989 & 11990 of 2009, the Decree-holder in O.S. No.237 of 1985 could enforce the portion other than the portion covered in O.S. Nos.11989 & 11990 of 2009. that is, barring 450 sq.ft. the Decree-holder in O.S. No. 237 of 1985 could seek for delivery of possession of the rest of the properties.

In the said circumstances, the Revision Petitioner filed E.A. Sr. No.35043 of 2015 in E.P. No.1896 of 2001 alleging that the Decree made in OS. No. 237 of 1985 is not an executable one.

The learned Counsel for the Revision Petitioner has vehemently contended that the property involved in O.S. No.237 of 1985 is a Government Poramboke land and further, it was sold by the Plaintiff therein to Third parties. Hence, the Third parties could not execute the Decree. Those objections were rejected by the Trial Court in its Order dated 6.8.2015 in E.A. Sr. No.35043 of 2015 in E.P. No. 1896 of 2001.

In fact, the Trial Court considered the very same issue raised by the Revision Petitioner in its Judgment and Decree dated 18.2.1988 in O.S. No.237 of 1985 and in Paragraph 6 of its Judgment, the Trial Court observed as follows:

Mdhy; th/rh/8d;go 3/9/60y; jhthr; brhj;jpw;Fk; mijr; Rw;wpa[s;s ,lj;jpw;Fk; thjpf;Fg; gl;lh bfhLf;fntz;Lbkd;W brl;oy;bkz;;;l; mjpfhhp Miz gpwg;gpj;Js;shh;/ mjdog;gilapy; th/rh/M9d;go thjpf;F gl;lh bfhLf;fg;gl;Ls;sJ/ mg;goapUf;Fk;nghJ jhthr; brhj;J gl;lh epyk; ,y;iy vd;W 1k; gpujpthjp brhy;tij ehk; Vw;Wf;bfhs;sKoahJ/ mg;gona mr;brhj;J rh;f;fhh; g[wk;nghf;F epykhf ,Ue;jhYk; mjw;fhf thjp nghpy; muR jhd; eltof;if vLf;fKoa[k;/ jhthr;brhj;jpw;F thjpaplk; thlifjhuuhf te;j 1k; gpujpthjp jhthr; brhj;J thjpf;Fg; ghj;jpak; ,y;iy vd;W brhy;yKoahJ/ nkw;Twpa fhuz'';fspdhy; tHf;F brhj;Jf;F 1k; gpujpthjp khjk; U:/165- tPjk; jhdk; bfhLf;ftpy;iy vd;Wk; thlif brYj;jpte;jhh; vd;Wk; jhdkhfnth fpuakhfnth jhthr;brhj;J 1k; gpujpthjpf;Ff; bfhLf;fg;gltpy;iy vd;Wk; jhthr;brhj;jpd; RthjPdj;ijg; bgw thjpf;F chpika[s;sJ vd;Wk; jPh;t[ bra;ag;gLfpwJ"

The aforesaid narration of facts would make it clear that barring 450 sq ft., the Decree-holder in OS No.237 of 1985 and the subsequent purchaser of the properties from the Decree-holder can very well enforce the Decree in O.S. No.237 of 1985. The Revision Petitioner, whose husband agitated by filing A.S. No.186 of 1989 cannot now assail the Decree passed in O.S. No.237 of 1985.

Further more, the Revision Petitioner already filed C.R.P. No. 2191 of 2004 questioning the Order dated 9.9.2004 in E.P. No. 1896 of 2001, directing to hand over possession. This Court rejected the said Civil Revision Petition on 14.8.2009 by a detailed Order.

In such circumstances, I do not find any infirmity in the Order of the Trial Court barring the area covered by the Judgment and Decree, dated 25.4.2012 of the VI Assistant Judge, City Civil Court in O.S. Nos.11989 & 1 1990 of 2009. The Decree-holder can very well execute the Decree in O.S. No.237 of 1985 as the Judgment attained finality for more than once as stated above.

Hence, I am of the view that there is no infirmity in the Order of the Trial Court in rejecting E.A. Sr. No. 35043 of 2015 in E.P. No. 1896 of 2001. The Petitioner now cannot question that the property is a Government Poramboke land in the above said facts and circumstances of the case.

In the result the Civil Revision Petition fails and accordingly, the same stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.