Francis vs K. Madhavan Nair

C.S. Karnan, J.—This petition has been filed by the Petitioner to call for the records relating to the petition and order cited above and set

aside the said order dated 01.07.2011 in E.P. No. 22 of 2010 in O.S. No. 60 of 1998 of Principal District Munsif Court, Padmanabhapuram.

The nutshell of the case is as follows:

The Respondent/decree holder has filed a suit in O.S. No. 60 of 1998 against the revision Petitioner/judgment debtor to recover the suit property

after removing the shed put up by the Defendant, unauthorised, at his cost, and if he fails to do so within a reasonable period to be fixed by the

court, the Plaintiff be allowed to remove the same, through court, and for other relief. The said suit was resisted by the Defendant after filing written

statement. Thereafter, the learned Judge had framed necessary issues and conducted adjudication. Finally, the suit was dismissed with costs.

Aggrieved by the said dismissal of the suit the Plaintiff had filed appeal suit in A.S. No. 87 of 2002. The learned first appellate court Judge, after

hearing the arguments of the Appellant''s counsel and on scrutinising the judgment and decree of the trial court, was pleased to allow the appeal,

and set aside the decree and judgment of the trial court.

The operative portion of the judgment is as follows:

....... while considering the above fact, it is decided that the sale deed Ex.B1 and B2 obtained by the Defendant is not legally enforceable. They

have obtained fraudulently. The Plaintiff is in possession of the property in his capacity as part performance. The Defendant obtained possession,

when the injunction order is in force. It will certainly amount to an act of trespass. Therefore, the Plaintiff is entitled to delivery of possession. He

has to pay a sum of Rs. 1000/- per year as past mesne profits and future mesne profits of Rs. 500/- per year.

Against the decree and judgment of the 1st appellate court, the Defendant has filed the 2nd appeal. After hearing the arguments advanced by the

counsels on both sides and on perusing the judgement of the courts below, this Court dismissed the second appeal in S.A. No. 364 of 2004 and

the decree and judgment of the 1st appellate court was confirmed. Thereafter, the decree holder has filed E.P. No. 22 of 2010 for execution of

decree. As per decree, the decree holder is entitled to delivery of possession, and the judgment debtor has to pay a sum of Rs. 1000/- per year as

past mesne profits and Rs. 500/- per year for future mesne profits.

The learned executing court passed an order on 27.01.2010 and direction was given for execution of decree with the help of Bailiff. Aggrieved

by the said delivery order, the judgment debtor has filed the above revision.

The learned Senior Counsel for the judgment debtor argued that one Harihara Iyer and his family members owned 94 cents in ponmanai village,

Kalkulam Taluk, Kanyakumari District. He filed O.S. No. 65 of 1981 before District Munsif Court, Padmanabhapuram to redeem the mortgage

for Rs. 7601.60. On 12.05.1985, the Respondent Madhavan Nair entered into an unregistered agreement with him to purchase the property for

Rs. 75,200/-, receiving Rs. 8000/- as advance and got a power from him for redeeming the mortgage. Respondent conducted the suit and got

possession on 15.12.1989. The balance of Rs. 67,200/- was not paid. The Petitioner, on 03.07.1996 purchased 47 cents and on 12.08.1998

purchased 47 cents from Harihara Iyer, not having knowledge of the said agreement dated 12.05.1985 and based on title, Harihara Iyer handed

over possession to the Petitioner and the Petitioner build residential house, cattle shed and planted rubber and other trees. The Respondent, who is

the neighbour of the Petitioner did not object and in fact acquiesced in Petitioner putting up residential building and making above improvements. It

was also argued that the Respondent filed O.S. No. 60 of 1998 before the Subordinate Court, Padmanabhapuram for possession from the

Petitioner alleging forcible possession, which was dismissed on 11.06.2002. His A.S. No. 87 of 2002 of Principle District Judge, Nagercoil in

which the Petitioner was set ex parte, was allowed granting decree for possession in favour of Respondent on 31.01.2003. The Petitioners S.A.

No. 364 of 2004 after notice, was dismissed on 06.11.2009, however observing in paragraph 33 of the judgment that the Petitioner herein can get

possession through due process of law as owner of the property, since the suit concerned in S.A. No. 364 of 2004 was decreed on the ground of

forcible possession having been taken over by the Petitioner, SLP No. 6368 of 2010 was dismissed by the Supreme Court.

In the meantime, on 19.03.2009, the Respondent herein entered into an agreement of sale dated 19.03.2009 with one Alexander to sell the 94

cents for Rs. 3,80,000/-receiving Rs. 3,00,000/- on that date and the Respondent took forceful possession from the Petitioner and handed it over

to Alexander. Since the Petitioner was in occupation of the Petitioner for a rent of Rs. 300/- per month. Alexander filed O.S. No. 35 of 2010

before Subordinate Court, Padmanabhapuram for specific performance of agreement for sale deed 19.03.2009 as the Respondent did not receive

the balance of Rs. 80,000/- and to execute the sale deed which is pending.

The learned Senior Counsel further argued that in the meantime, the Respondent filed E.P. No. 22 of 2010 in O.S. No. 60 of 1998 of

Subordinate Court, Padmanabhapuram before Principal District Munsif Court, Padmanabhapuram to execute the decree in A.S. No. 87 of 2002

decreeing the suit of the Respondent by demolishing the building of the Petitioner and the improvements made by him. Alexander filed claim

petition in E.A. No. 196 of 2010 in E.P. No. 22 of 2010 in O.S. No. 60 of 1998 of Subordinate Court, Padmanabhapuram pending before the

Principal District Munsif Court, Padmanabhapuram claiming title to the property, which was dismissed on 01.07.2011 and on the same date

delivery in E.P. No. 22 of 2010 was ordered, appointing on the Respondent''s memo, Advocate Justice same in the place of Edwin victor as

Advocate/ Commissioner for demolition of the building and destruction of improvements and report is awaited and the Respondents delivery bata

was returned and Advocate Commissioner''s report was awaited on 25.07.2011. Redelivery by 16.08.2011 was ordered.

In the meantime, the Petitioner filed O.S. No. 147 of 2011 against the Respondent and Alexander for declaration of title and recovery of

possession as per liberty given to the Petitioner in paragraph 33 of the judgment in S.A. No. 364 of 2004 dated 06.11.2009 and it is pending

before the Subordinate Judge''s Court, Padmanabhapuram.

The learned Senior Counsel specifically argued that the revision Petitioner is a labour belonging to the weaker section of society and that with

his hard earned money, he had constructed a building over the suit property. If delivery order is executed, the building will be demolished. If the

building is demolished, the Petitioner would not be able to construct another house for his residential accommodation. The learned Senior Counsel

further suggested that as per the decree, the revision Petitioner would have to pay a sum of Rs. 1000/- for past mesne profits and Rs. 500/- for

future mesne profits. The learned Senior Counsel has submitted that the revision Petitioner is prepared to pay more than Rs. 1000/- as mesne

profits.

The Learned Counsel for the decree holder argued that the decree is a contested one. As such, it is an executable one. Even though, there are

cases namely O.S. No. 35 of 2010 and O.S. No. 147 of 2011 pending before the District Sessions Court, Kanyakumari, No. interim order has

been passed against the decree holder. Therefore, the decree can be duly executed. The Learned Counsel further argued that the case went upto

Supreme Court. The Hon''ble Apex Court of India also confirmed the decree. Therefore the courts lower than the Apex Court cannot interfere

with the execution proceedings in any way. The suit was initiated in the year 1998. Almost 13 years have elapsed. Under the circumstances, the

revision Petitioner is not maintainable.

In the facts and circumstances of the case and arguments advanced by the learned Senior Counsel for the revision Petitioner and arguments

advanced by the Learned Counsel for the Respondent/decree holder and on perusing the entire typed set of papers including the impugned order

of the learned executing court, this Court is of the considered opinion that,; (i) There is No. legal ground to prevent the execution proceedings. (2)

Even though two civil suits are pending over the property, there is No. interim order granted in favour of the revision Petitioner. (3) The case went

upto Hon''ble Supreme court of India, which has also confirmed the decree and judgement of the courts below. Under the circumstances, this

Court cannot interfere with the E.P. Proceedings. Therefore, the above civil revision petition cannot be entertained. Considering the learned Senior

Counsels'' submission that the revision Petitioner is a labour and belongs to a weaker section of society and that the Petitioner would find it

extremely difficult to build another building for his residential purpose if the present building demolished, this Court, on compassionate grounds,

grants time upto 30.11.2011 to the revision Petitioner for vacating his house. As such, this Court directs the execution court to proceed with the

E.P. proceedings after 30.11.2011, in accordance with law.

The learned Senior Counsel for the Petitioner specifically pointed out that the judgment rendered in the 2nd appeal as contained in paragraph

33 clearly indicates that the revision Petitioner cannot be evicted without following due process of law. this Court is of the opinion that there is No.

specific findings by the Hon''ble Supreme Court of India regarding this contention. Therefore, this Court does not accept the contention of the

learned Senior Counsel, on this aspect.

In the result, the above civil revision petition is disposed of with the above observations. Consequently, the order passed in E.P. No. 22 of

2010 dated 01.07.2011 and 25.07.2011 in O.S. No. 60 of 1998 on the file of Principal District Munsif, Padmanabhapuram is kept in abeyance

till 30.11.2011. Thereafter, the E.P. proceedings will become operational. Accordingly ordered. Connected miscellaneous petition is closed. There

is No order as to costs.