Kala, Ramesh and Suresh vs S.K. Ganesan

S. Rajeswaran, J.—The petitioners/judgment debtors in E.P. No. 183/1999 in O.S. No. 208/1980 have filed the above Revision Petition

challenging the order of the execution court dated 1.12.2004 regarding the delivery and terminating execution petition.

O.S. No. 208/1980 has been filed by the respondent herein against the revision petitioners and their father Sundaresekara Udayar. The trial

court on 23.10.1980 directed the defendants in the suit to execute the sale deed of the property mentioned in the plaint schedule. An Appeal was

filed in A.S. No. 11/1992 and the same was dismissed on 11.8.1995. The Second Appeal in S.A. No. 1403/1995 was also dismissed by this

Court on 16.4.1996. Thereafter E.P. No. 101/1996 was filed by the respondent herein for execution of the sale deed in respect of plaint schedule

property and the same was ordered. The sale deed was also executed. The present E.P. No. 183/1999 was filed by the respondent for delivery of

possession. In that execution proceedings, an application u/s 47, CPC was filed by the revision petitioners and another and the same was

dismissed on 28.11.2001. On 5.12.2001 the respondent herein took possession of the property on the basis of the order passed in the E.P.

Against the order dated 28.11.2001, dismissing the Section 47 application, the revision petitioners filed C.R.P. No. 455/2002 and the same was

dismissed on 5.11.2003. On 1.12.2004 after recording the delivery, the E.P., itself was terminated. Challenging the said order, the above revision

petition has been filed.

Heard the learned Counsel for the petitioners and the learned Counsel for the respondent. I have also perused the documents filed in support of

their submissions.

The learned Counsel for the petitioners submitted that irrespective of the dismissal of the C.R.P. No. 455/2002, the execution petition has got to

be decided on merits and the court below has failed to note that one of the judgment debtors by name Lalitha died on 18.11.2003 and the order in

the E.P. was passed on 1.12.2004 without taking note of the same and without passing any order to that effect would render the order dated

1.12.2004 a nullity.

I am unable to accept the contentions of the learned Counsel for the petitioners.

E.A. No. 121/2000 was filed by all the revision petitioners herein and the deceased Lalitha u/s 47 of C.P.C., praying to dismiss the E.P., as the

decree is inexecutable on the ground that no such property existed as described by the decree holder in the Execution Petition. E.A. No.

121/2000 was dismissed by the execution court and all the applicants in E.A. No. 121/2000 filed C.R.P. No. 455/2002 before this Court and this

Court on 5.11.2003 dismissed the said revision petition as infructuous. In the order dated 5.11.2003, the learned Judge referred to the disposal of

the Execution Petition itself on merits and taking possession of the property by the respondent herein on 5.12.2001. In such circumstances, there is

nothing wrong in the order of the execution court recording the delivery and terminating the Execution Petition.

It is true that one of the judgment debtors died on 18.11.2003 as could be seen from the certificate of death filed in the typed set of papers. But

the decree was executed and possession was already taken by the respondent herein on 5.12.2001 itself. Moreover, the E.P. was filed against the

revision petitioners and the deceased Lalitha as the legal representatives of Sundaresekara Udayar. All the legal representative conjointly

represented collective interest of the deceased person and the death of one of the legal representatives would not result in abatement. Therefore, I

find no illegality nor infirmity in the order of the execution court. Hence the revision petition is dismissed. No costs. C.M.P. Nos. 2574 and 2575

of 2005 are also dismissed.