A necessary party cannot be added until an obstruction is made by them.

The petitioner/decree holder/plaintiff has filed this civil revision petition as against the order dated 29.06.2009 in E.A.No.971 of 2009 in E.P.No.1889 of 2008 in O.S.No.536 of 1993 passed by the learned IX Assistant Judge, City Civil Court, Chennai in dismissing the application filed by the revision petitioner under Order 1 Rule 10 of Civil Procedure Code praying to implead the son viz., second respondent and the third respondent being a tenant of second respondent.

2. To avoid an avoidable delay, this Court dispenses with the issuance of notice the respondents in the interest of justice.

3. The Executing Court, while passing orders in E.A.No.971 of 2009 dated 29.06.2009, has, inter alia, come to the conclusion that ... But, in the execution court, unless and until the third party obstructing the execution is made out, the necessary party cannot be made etc. and the petition for impleading the parties 2nd and 3rd respondents is without any justification and resultantly, dismissed the application without costs.

4. The learned counsel for the revision petitioner/ plaintiff/decree holder submits that the first respondent/ first defendant (father) has sold the property to second respondent viz., his son on 30.06.1996 by virtue of sale deed dated 30.06.1996 registered at Sub Registrar Office, Velacherry, Chennai and that the revision petitioner has come to know of the said sale only after the filing of the second EP viz., E.P.No.1889 of 2008 and in order to have effective possession from the first respondent/first defendant, it is just and necessary that E.A.No.971 of 2009 viz., the impleading application has to be allowed and further that respondents 2 and 3 are to be impleaded as necessary parties to the execution proceedings and if they are not impleaded, then the revision petitioner will not be in a position to recur possession of the property from them and as a matter of fact, these aspects of the matter have not been appreciated by the Executing Court in a real perspective which has resulted in an erroneous impugned order being passed against the revision petitioner/ plaintiff and therefore, prays for allowing the civil revision petition.

5. In support of the contention that the revision petitioner/plaintiff is entitled to file an execution petition for every recurring infringement as long as the application has been filed within time and that a plaintiff cannot be driven for a second suit, the learned counsel for the revision petitioner/plaintiff cites the decision of this Court Kanakamma V. Kamalan 2000 (II) CTC 240 wherein it is inter alia held that plaintiff is entitled to file execution application for every recurring infringement as long as application was filed within time and that the plaintiff cannot be driven for second suit and that the order of executing Court is set aside and the matter is remanded."

.6. It is to be noted that in the affidavit in E.A.No.971 of 2009, the revision petitioner/decree holder has stated that she has learnt from the encumbrance certificate dated 28. 97 that her property has been wrongfully sold by the first respondent/first defendant to his own son Senthilkumar by means of a registered Document No.2115 of 1996 and that she has obtained a decree for permanent injunction in the suit on 28. 1997 and as a matter of fact, the first respondent/first defendant has sold the revision petitioner/ decree holders property wrongfully to his own son the second respondent to grab the property and in turn the second respondent had let out the said property to third respondent and therefore, on the basis of equity, fair play and good conscience, respondents 2 and 3 will have to be arrayed as necessary parties in execution proceedings.

7. Expatiating his arguments, the learned counsel for the revision petitioner/decree holder submits that the proper/necessary party can be added at any stage of the proceedings by a Court of Law and in order to do the complete and comprehensive justice,