Ex-parte decree after becoming final cannot be questioned.

The petitioner has preferred this Civil Revision Petition against the order passed by the X Assistant Judge, City Civil Court, Madras in E.A.No.138 of 1996 in E.P.No.2022 of 1985 in O.S.No.4683 of 1982 dated 25.11.1997.

2. The respondent/decree holder obtained an exparte decree dated 9.11.1982 against the petitioner herein in O.S.No.4683 of 1982 for specific performance of an agreement of sale and proceeded to execute the decree in E.P.No.2022 of 1985. The executing court having considered the rival contentions of the parties ordered delivery of the property. Since the warrant was returned on account of obstruction, the respondent filed applications in E.A.No.3675 of 1985 for removable of superstructure put up by the obstructors and delivery of possession, E.A.No.3676 of 1985 for police aid and E.A.No.3677 of 1985 for direction to break open the lock. Afterwards, as per the orders of the executing court, the property was delivered 6.9.1985 after removal of the superstructure with police aid and the petition was closed.

3. Subsequently, the respondent/decree holder filed the application in E.A.No.1684 of 1994 for delivery of possession of the property for the second time on the ground that the revision petitioner/judgment debtor trespassed into the suit property subsequent to the delivery effected through Court as referred supra. The said application was contested by the petitioner herein. However, the executing Court passed an order dated 22.8.1995 to deliver the property as per decree on or before 1.11.1995. Meanwhile, the petitioner herein/judgment debtor filed the application in E.A.No.138 of 1996 under Section 47 r/w 94 (3) and 151 of the Civil Procedure Code to declare that the exparte decree dated 9.11.1982 passed in the said suit is a nullity and therefore non est in law, unenforceable and unexecutable and to dismiss the E.P.No.2022 of 1985 as not maintainable in law. After elaborate enquiry, on the basis of the arguments put forth on either side, the learned X Assistant Judge dismissed the said application on 25.11.1997. Hence, the revision.

5. Heard Mr.G.Annamalai, learned counsel for the petitioner and Mr.V.Sathyanarayanan, learned counsel for the respondent.

6. On a careful perusal of the records of the proceedings, it appear that the crux of the matrix is whether the second execution application filed by the respondent/decree holder for delivery of the suit property is maintainable or not. It is the admitted case of both the parties that in pursuance of the order of delivery passed by the executing Court, the previous execution petition stood closed on 6.9.1985 after recording delivery. Hence, the learned counsel for the revision petitioner has submitted that the second execution petition is not maintainable in law.

7. The revision petitioner has candidly admitted in the counter affidavit filed by her in application in E.A.No.1684 of 1994 that there were huts over the suit property and that it is for the petitioner to find out who are the owners of the huts and how they are in possession of the same and apply for removable of the huts and that after hearing the objections, the application may be ordered. In fact, she would state in the affidavit filed in support of the application in E.A.No.138 of 1996 that she was in possession and enjoyment of the suit property in spite of the earlier order passed by the executing Court to deliver the property after removal of the superstructure with police aid to the respondent/decree-holder. Therefore, the learned counsel for the revision petitioner would urge that the second execution petition was wholly unsustainable in law and that therefore the impugned order passed by the executing court is liable to be set aside.

8. In view of the above circumstances, the learned counsel for the respondent has argued that in the altered circumstances, subsequent execution petition is maintainable in law and he has drawn the attention of this Court to the decision in KANAKAMMA v. KAM