High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE GOVARDHAN
Mahaboova Beevi
Versus
Nataraja Chettiar
C.R.P.No.2035 of 1992
Decided On : 27-02-1995
This revision is against the order passed by the District Munsif, Maviladuthurai, dated 24. 1992 in E.P.No.294/1988 in O.S.No. 343 of 1982.
.2. The Execution Petition is for delivery of 88 cents in R.S.No.201/1 which is in R.S.No.201/1-A., The respondent has objected to the delivery of the property contending that the decree is an ex parte one which cannot be enforced and this particular extent of 88 cents is not in the four boundaries mentioned in the petition.
3. After considering the rival contentions of the parties, the learned District Munsif has rejected the objection raised by the respondent and directed delivery of the property through the Commissioner with a direction to find out whether the property described in the petition is in accordance with the decree to be delivered.
.4. It is against this order, the judgment-debtor has preferred this revision. The learned counsel appearing for the revision petitioner would argue that the order passed by the executing court is not legal and valid and therefore, it must be set aside in this revision. According to the learned counsel appearing for the revision petitioner, the Executing Court has delegated its powers to enquire and find out whether the delivery could be effected in pursuance of the decree, to the Commissioner and therefore, it is not a valid order. There cannot be two opinions that the duty of an executing court is to give effect to the terms of the decree. We have therefore to find out whether the direction given by the executing court to the Commissioner would amount to delegation of its powers to the Commissioner. The learned counsel appearing for the revision petitioner would argue that a decree is the culmination of a suit which has been filed on a cause of action and as soon as the decree is passed, the original cause of action is merged in it and has no separate existence and in the present case, it cannot be stated that there is a valid decree passed by the trial court. The learned counsel appearing for the revision petitioner would draw the attention of this court to the recitals in paragraph 3 of the plaint wherein the plaintiff has stated that she is having only 88 Kuzhis i.e., the suit properties in the said village bearing R.S.No.202/1. The learned counsel would also draw the attention of this court to the description of the property in the plaint which shows that the plaintiff has described the property as being an extent of 88 cents. According to the learned counsel appearing for the revision petitioner, when the plaint averments read that the extent of the property is 88 kuzhis, and the description of the same is to the effect that it is 88 cents, and it is not known which is the correct extent, the executing court should have decided the question as to what is the property which has to be ordered to be delivered instead of directing the Commissioner to inspect the property and deliver the same in accordance with the decree. In the decree if the trial Court, it is not stated as it whether this 88 refers to cents or kuzhis, when the plaint averments is to the effect that it is 88 kuzhis and the description of the property in the plaint to the effect that it is 88 cents and the decree is silent as to whether the 88 refers to cent or kuzhi. The learned counsel therefore would contend that the executing court should have made an enquiry to and find out the extent and also the identity of the property regarding which the execution petition has been filed and the direction given to the Commissioner to deliver the property, if it is in accordance with the decree, would amount to delegation of its powers to the Commissioner and it is liable to be set aside. The learned counsel appearing for the respondent would on the other hand argue that there is no dispute with regard to the identity of the property and the defendant, has not challenged the same in the written statement filed by him, since the defendant is aware what is the suit propert
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