Kanniammal And Others vs S.Anjala And Others

P.B. Balaji, J

The defendants 2 and 3 in O.S.No.213 of 2003 before the District Munsif Court, Gudiattam, Vellore District, are the petitioners. The revision petitioners challenge the order passed in E.A.No.9 of 2019 in E.P.No.83 of 2017. The said EA was filed by the revision petitioners under Section 47 r/w Section 151 of CPC to declare the decree for delivery of possession as inexecutable. The executing Court, on enquiry, dismissed the said application, as against which, the present revision petition has been filed.

2.I have heard Mr.S.Anil Sandeep, learned counsel for the petitioners and Mr.N.Nithianandam, learned counsel for the 1st respondent.

3.Mr.S.Anil Sandeep, learned counsel for the petitioners would mainly contend that an extent of 22 cents, which is claimed by the decree holder in the execution petition is available only on paper in the revenue records and the same is not physically available on earth and consequently, in such circumstances, the decree itself is inexecutable. He would also rely on the report of the Advocate Commissioner in this regard, which according to the learned counsel for the revision petitioners, vindicates their stand that land was not available on earth. He would therefore pray for the revision being allowed.

4.Per contra, it is the contention of Mr.N.Nithianandam, learned counsel for the 1st respondent that the sale deed in question contains four specific boundaries and despite the defendants suffering a decree up to this Court in Second Appeal proceedings and such a plea of land not being available not even been taken before any of the Courts, he would state that it is not open to the revision petitioners to raise it for the first time in the Section 47 petition. He would therefore state that the executing Court has rightly rejected the objections of the revision petitioners that the decree is inexecutable. He would pray for dismissal of the revision petition.

5.I have carefully considered the submissions advanced by the learned counsel on either side. I have also gone through the records, including the order impugned in the present revision.

6.In fact, pending this revision, this Court, by order dated 05.06.2025, had appointed an Advocate Commissioner to survey the field survey number concerned and the Advocate Commissioner has also filed a report dated 25.07.2025. The Advocate Commissioner has mentioned that S.No.1/8B has an extent of 0.66.00 ares and the said survey number has been subdivided on 22.04.2001, in terms of which, one S.No.1/8B1 has an extent of 50 ares and S.No.1/8B2 has an extent of 16 ares. However, insofar as S.No.1/8B1, the land available physically is only 42.27 ares and in S.No.1/8B2, the land physically available is only 15.57 ares and there is a shortfall of 8.14 ares, in all, 7.73 ares shortage in 1/81B and 0.43 ares shortage in respect of S.No.1/8B2. The suit has been decreed in respect of 0.22 cents in S.No.1/8B. However, the 1st respondent has filed objections to the report, stating that the Commissioner and the Taluk Surveyor have not adopted the correct methodology to measure the property, which is not of a proper shape, but in an angular position and that the measurement ought to have been either by link chain or compass method which alone would have reflected the correct measurements.

7.According to the petitioners, the decree for possession has been granted only in respect of 22 cents out of 62 cents, though the relief of injunction has been granted for the entire extent of 62 cents and when the Surveyor came to the property to measure, he found that the property itself is not in existence, as mentioned in the decree. Before subdivision, S.No.1/8B belonged to one Chellappa Gounder and the said property has been partitioned under an unregistered Koorchit in the year 1992 and the vendors of the plaintiffs were allotted Schedules D and E under the said Koorchit.

8.It is the case of the 1st respondent/decree holder that subsequent to the dismissal of Second Appeal before this Court, delivery of possession was attempted with the help of police in February 2019 and the Surveyor has already fixed the boundary stones and identified the 22 cents in the presence of the revision petitioners and therefore, there is absolutely no substance in the challenge to the executability of the decree.

9.The trial Court, finding that the plea of the property not being available on ground was not taken either at the time of trial or during the pendency of the First Appeal as well as the Second Appeal before this Court, held that the petition was filed only to drag the proceedings and defeat execution of the decree and dismissed the application.

10.At the outset, the decree that has been passed for recovery of possession, which is now sought to be put into execution, is that the 1st defendant has been directed to measure and hand over possession of 22 cents of land, which belongs to the plaintiff. Curiously, the 1st defendant has not challenged the decree or its executability. However, the defendants 2 and 3 have attempted to question the executability of the decree.

11.The 1st respondent also objected to the manner in which the measurement was taken, namely measuring the lands comprised in S.No.1/8B1 and S.No.1/8B2 standing in the name of the 1st respondent by way of separate patta first and thereafter measuring property in S.No.1/8B1 which stands jointly in the name of the petitioners and others. Yet another objection that is taken is that the 2nd petitioner has gifted a portion of lands for road widening project to Palar river and the same has not been considered by the Commissioner and the Taluk Surveyor.

12.As regards the report of the Advocate Commissioner before this Court, this Court, only in an attempt to find out whether the issue can be given a quietus, has thought it fit to appoint an Advocate Commissioner.

When serious objections are taken to the report of the Advocate Commissioner and there is also merit in the said objections, especially with regard to the methodology adopted for carrying out the measurements, I do not deem it proper to rely on the said report of the Advocate Commissioner, in order to decide the questions that arise for answer in this revision.

13.As already discussed, the 1st defendant has been called upon to measure an extent of 22 cents and deliver possession of the same to the plaintiff. The said 1st defendant has no grievance with regard to the executability of the decree in respect of the property in his possession. In fact, the decree holder has laid the execution petition only against the 1st defendant. However, subsequently, the petitioners filed E.A.No.8 of 2019 seeking their impleadment in the execution petition and by order dated 25.02.2021, they have also been impleaded in the execution petition.

14.As regards 22 cents, this Court while disposing of the Second Appeal, has held that the defendants had accepted the title of the plaintiff to 62 cents and finding that that the plaintiff was in possession of only 40 cents and the remaining 22 cents had been encroached, held that the plaintiff was entitled to recover possession of 22 cents and restored the findings of the trial Court ,which had been reversed by the First Appellate Court.

15.It was not the case of the revision petitioners even before this Court that the said extent of 22 cents was not even available on ground. In fact, in the written statement that was filed by the 1st defendant alone which was adopted by the revision petitioners, who are defendants 2 and 3, it has only been contended that the allegation that the 1st defendant has encroached the plaintiff's land is false and there is no cause of action for filing the suit and that the village elders had already planted boundary stones even in 1982. It was never the case of the revision petitioners that the extent of 22 cents was not available in the first place for the plaintiff to seek recovery of possession of the same.

16.In fact, the revision petitioners did not even choose to independently defend the suit and had only chosen to adopt the written statement of the 1st defendant. The judgment and decree of the trial Court has thus attained finality with the Second Appeal being allowed by this Court. Further, according to the 1st respondent, even in the execution proceedings, 22 cents has been identified by the Surveyor and stones have been fixed and there was no objection taken to the same by the revision petitioners.

17.In a petition under Section 47 of CPC, the executing Court cannot go behind the decree and the exception to the general Rule is that if the decree, which is sought to be executed, is a nullity, on account of lack of inherent jurisdiction in the Court passing such decree, then invalidity of such a decree can be raised in the execution proceedings, by filing an application under Section 47 of CPC. However, when an objection relates to an issue, which could have been raised during the trial of the suit and has not been raised, then the executing Court does not have the power or jurisdiction to entertain such an objection as to the executibility or the validity of the decree. The present case would squarely fit within the said principle.

18.As already discussed, the revision petitioners only chose to piggyback ride on the 1st defendant's defence and the trial Court found that the 1st defendant had encroached an extent of 22 cents of the plaintiff's property and directed the 1st defendant to deliver possession of the same.

The First Appellate Court reversed the findings of the trial Court, but however, in Second Appeal, this Court restored the judgment and decree of the trial Court and therefore, the 1st defendant has become liable to hand over possession of 22 cents. It is a matter between the plaintiff and the 1st defendant regarding 22 cents of land of which possession is to be handed over to the plaintiff. The execution petition has been filed only for recovering possession of the said 22 cents from the 1st defendant. I do not see how the revision petitioners are, in any manner, affected by the said decree passed against the 1st defendant.

19.If at all it was the case of the revision petitioners that the said 22 cents is not even available on earth physically and that under the guise of the suit, the plaintiff is only attempting to recover the property belonging to the revision petitioners, then such contentions ought to have been raised at the earliest instance. At the same time, the decree holder is entitled to execute only the decree in his favour and under the guise of the decree, the decree holder cannot attempt to recover any property from the revision petitioners. This can be ensured by the executing Court by permitting delivery of the property, namely 22 cents, as decreed by the trial Court through the bailiff with the assistance of the Taluk Surveyor concerned to ensure that the rights of the revision petitioners are not in any manner affected. However, on this score it is not open to the petitioners to contend that the decree itself is not executable. Therefore, the above observations and directions would sufficiently protect the interest of the revision petitioners and at the same time, ensure that the decree holder is able to enjoy the fruits of the decree.

20.With the above observations and directions, the Civil Revision Petition is disposed of. There shall be no order as to costs. Connected Civil Miscellaneous Petition is closed.