BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/09/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(NPD)No.1056 of 2009 MP.No.1 of 2009 1. Ammaiyakkal 2. Selvaraj 3. Jayaraj ... Petitioners Vs 1.Pandian @ EthilAvulu Naicker 2.Kunjulumuthu Naicker 3.Appaiah ... Respondents Prayer This Civil Revision Petition is filed against the fair order and decretal order dated 30.6.2008 passed in EP.No.30/2003 in OS.No.337/1997 on the file of the District Munsif cum Judicial Magistrate, Bodinayakanur. !For Petitioners ... Mr.S.Ramachandran ^For Respondents ... Mr.S.Kadarkarai :ORDER
This Civil Revision Petition is filed by the defendants against the
order dated 30.6.2008 passed in EP.No.30/2003 in OS.No.337/1997 by the learned
District Munsif cum Judicial Magistrate, Bodinayakanur.
2. The respondents have filed a suit in OS.No.1180/1973 before the
District Munsif, Periakulam for partition of family properties through their
mother/guardian as they were minors while filing the suit. The said suit was
dismissed, as against which the respondents filed an appeal in AS.No.36/1989 and
the same was allowed and a preliminary decree was passed on 26.8.1977 granting
3/4th share in items (2) to (8) of the suit properties. Thereafter final decree
had also been passed on 16.9.1989.
3. The father of the petitioners by name Veerathevar had purchased
an extent of 2 acres 53 cents of nanja land in S.No.105/2A in Bodinayakanur
Village under a registered sale deed dated 2.7.1982, which also form part of the
partition suit. The said Veerathevar had filed an appeal in AS.NO.36/1989 before
the Sub Court, Periyakulam and the same was allowed and the decree dated
12.12.1991 was passed on the basis of the joint memo dated 19.10.1990 recorded
on 22.10.1990. As per the decree dated 12.12.1991 passed based on the joint
memo, out of 2 acres 53 cents in S.NO.105/2A, 1 acre 23 cents of nanja land on
the western portion was allotted to the said Veerathevar in lieu of 2 acres 53
cents and the remaining was to be allotted in some other survey number. After
the death of Veerathevar, the petitioners, who are the legal heirs, had been
impleaded as legal heirs of the said Veerathevar as respondents 9 to 11 in the
final decree.
4. According to the petitioners, the said Veerathevar had entered
into a tenancy agreement with his cousin namely Ponndoss way back in the year
1983 and the tenancy was recorded in TR.No.57/1983 before the Recording Officer
and Tahsildar, Uthamapalayam. It is stated that the tenants are in possession.
In the mean while, the respondents have filed the execution petition in
EP.No.30/2003 in the court of District Munsif Cum Judicial Magistrate,
Bodinayakanur for delivery of the property pursuant to the final decree passed.
5. The execution petition has been resisted by the petitioners on
the ground that they have been allotted 1 acre 23 cents in S.No.105/2A and the
remaining extent of 1 acre 30 cents of land is yet to be allotted in some other
survey number and without allotting the remaining 1 acre 30 cents, the
petitioners cannot be evicted from the land. It is also contended that the
respondents having not filed a certified copy of the preliminary decree in the
EP proceedings, they are not entitled for delivery of possession. In the joint
memo, the father of the petitioners had agreed to take 1 acre 23 cents on the
western side in S.No.105/2A and had also agreed to take the remaining land in
some other survey number as decided by the court. Only based on the joint memo
the final decree had come to have been passed.
6. The final decree had been passed in the year 1991 and now the
petitioners cannot contend that without allotting the remaining land in some
other survey number, the delivery cannot be effected. It is now brought to the
notice of this court that delivery had been effected in accordance with the
final decree passed.
7. In determining an application under Order 21 Rule 35 of CPC, the
executing court has only to examine as to whether the decree holder is entitled
under the decree to the possession of the property. If they are found to be so
entitled, the executing court cannot decline to issue warrant of delivery.
Merely on the statement of the petitioners that some third person is in
possession as a tenant, it cannot stand in the way of the decree holder in
executing the decree in any manner he wishes. The executing court at the stage
of Order 21 Rule 35 of CPC cannot look into the stranger’s claim as to
possession of the property. The third party may resist the delivery and
thereafter justify it, but on the said ground the order of delivery cannot be
objected to by the petitioners. In this case, as delivery had been effected,
nothing survives to be decided in this Civil Revision Petition.
8. It is pertinent to point regarding the other contention raised
by the learned counsel for the petitioners that production of a certified copy
of the preliminary decree is necessary in the execution proceedings and without
the copy of the preliminary decree being produced the execution of the decree
cannot be effected and relied on the Rule 140 of the Civil Rules of Practice. It
is held by this court that civil rules of practice is only directory and not
mandatory and it cannot override the Code of Civil Procedure, placing reliance
on the decisions of the Allahabad High Court rendered in the cases of Farook Vs.
District Judge, Lucknow [AIR-1984-Allahabad-39] which has been confirmed by the
Honourable Supreme Court in the case of W.B.Essential Commodities Supply
Corporation Vs. Swadesh Agro Arming and Storage Pvt Limited and another [1999-8-
SCC-315]. Therefore, both the the contentions of the learned counsel for the
petitioners merits no acceptance. In the said view of the matter, there is no
escape from the conclusion that the respondents must be put in possession of the
land, which was allotted to them in the final decree in the year 1991, which has
become final as no higher court has upset the said decree.
9. In view of the aforesaid reasons, the order of delivery passed
by the executing court is perfectly justified and I do not find any illegality
or infirmity to interfere with the impugned order passed by the court below.
10. In the result, this Civil Revision Petition is dismissed. No
costs. Consequently, the connected MP is closed.
Srcm
To:
The District Munsif cum Judicial Magistrate, Bodinayakanur