Effective delivery not made in executive petition filed by decree holder.

The 1st defendant-judgment-debtor has filed this civil revision petition against the order in E.P.No.60 of 1993, allowing the said execution petition filed by the decree-holder-respondent for issue of warrant for delivery of possession of the suit property, pursuant to the partition final decree passed on 24. 1992 in O.S.No.576 of 1983.

2. The only contention of the learned counsel for the petitioner is that the execution petition itself is not maintainable in view of the following facts: On 26. 1992 itself the decree-holder filed Ex.B-1 memo in the suit, praying for recording full satisfaction of the decree on the footing that the decree-holder had taken possession as per the final decree, outside court. Further pursuant to the said memo, on 30.6.1992 the court also recorded full satisfaction accordingly. Therefore, according to the said counsel for petitioner, the present E.P.No.60 of 1993 filed on 2. 1993 is not maintainable. The learned counsel also relies on the decisions in Kunhanan v. Mamma Beary, A.I.R. 1961 S.C. 137 and Ramaganesan v. Rajah Ayyar, (1963)2 M.L.J. 162:A.I.R. 1964 Mad. 53: 76 L.W. 414: I.L.R. (1963) Mad. 911 (F.B.).

3. 1 also find that the petitioner filed O.E. ANo.379 of 1992 on 212. 1992 to set aside the abovesaid order dated 30.6.1992, but that the said execution application was not pressed and hence it was dismissed on 21. 1993. Further, few days prior to 212. 1992, that is on 112. 1992, the petitioner filed O.S.No.521 of 1992 for permanent injunction against possession interference with reference to the property in question and also filed I.A.No.775 of 1992 for temporary injunction along with the said suit on the footing that be continues to be in possession of the said property. In I.A.No.775 of 1992, the respondent-decrec-holder contended in his counter-affidavit dated 11. 1993-that he has already taken possession and that hence, the abovesaid memo dated 26. 1992 was filed. The said interlocutory application was, therefore, dismissed on 23. 1993 as shown by Ex.B-3.

4. According to the learned counsel for the petitioner, the above E.P.No.60of 1993 has been filed on 2. 1993 without disclosing the abovesaid order dated 21. 1993 in the abovesaid O.E.A.No.379 of 1992 or the pendency of the abovesaid I.ANo.775 of 1992 and the Court below, though has dismissed I.A.No.775 of 1992 on 23. 1993, holding that the decree-holder had already taken possession pursuant to the abovesaid memo, strangely allowed the execution petition by order dated 7. 1993, holding that the order dated 30.6.1992 recording full satisfaction as per the abovesaid memo is illegal. The said counsel argues that even though the decree-holder did not contend that the order dated 30.6.1992 was illegal, the court below has allowed the execution petition on the ground that it is illegal, relying on the mere pendency of O.E.A.No.216 of 1992 filed by the decree-holder for stay of the final decree proceedings (though no stay as such was given in O.E.A.No.216 of 1992) and the pendency of O.S.No.521 of 1992.

5. On the other hand, the learned counsel for the respondent-decree-holder argues thus: The conduct of the judgment-debtor himself in having filed O.E.A.No.375 of 1992 and O.S.No.521 of 1992 and I.A.No.775 of 1992 therein shows that delivery was actually not effected earlier, though the abovesaid memo of the decree-holder and the consequent order of the court below dated 30.6.1992 and the stand taken later also by the decree-holder that delivery was taken, show that delivery was actually effected. He further argues that the decree-holder should not be driven to another suit for possession despite the fact that he fought up to the Supreme Court in the present suit, which came to be filed as early as 1976. He also relies on K.Ramalingam v. K.N.K.Reddi, A.I.R. 1974 Mad. 325: (1974)1 M.L.J. 142: 87 L.W. 63, which also considered and explained Kimhanan v. Mammu Beary, A.I.R. 1961 S.C 737 as well as Ramaganesan v. Rajah Ayyar, (1963)2 M.L