A decree suffering from procedural irregularity cannot be termed in-executable and must be executed as it stands.

1. This Revision has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as "CPC") against the fair and decreetal order dated 20.09.2005 in E.A.No.69 of 2001 in E.P.No.14 of 2001 in O.S.No.110 of 1997 on the file of the District Munsif cum Judicial Magistrate Court, Nannilam.

2. The plaintiff is the petitioner herein. The petitioner filed a suit in O.S.No.110 of 1997, for partition, claiming 1/3rd share in the suit property. The respondents herein are the defendants 1 and 2 in the suit. Despite service of suit summons, the defendants failed to appear before the trial Court they were set exparte and an exparte preliminary decree was passed on 13.10.1997. Thereupon, the petitioner filed I.A.No.54 of 1998, to pass a final decree. In the mean time, the second respondent filed I.A.No.532 of 1998, to set aside the exparte preliminary decree dated 13.10.1997, and the said application was allowed. Subsequently, the second respondent/second defendant filed a written statement stating that the property comprised in survey No.55/1 is also a joint family property available for partition and the same have left out in the plaint schedule. Accordingly, the petitioner/plaintiff filed I.A.No.546 of 1999, under Order 6, Rule 17 CPC, to amend the prayer in plaint to include the survey No.55/1. This application was allowed by the trial Court and thereafter, a fresh preliminary decree was passed. Subsequently, the petitioner/plaintiff filed I.A.No.3 of 2000 for passing a final decree and in which, notice was served on the respondents. The first respondent herein, who was also the first respondent in I.A.No.3 of 2000, filed a counter statement inter alia contending that no notice was served on him in I.A.No.456 of 1999, which was filed to amend the prayer in plaint and in the absence of any such notice, the preliminary decree passed by the Court itself is illegal and consequently, no final decree can be passed. The trial Court considered the contention raised by the first respondent, and rejected the same and allowed the final decree application, by order dated 10.11.2000. As against the said order, the first respondent did not initiate further proceedings. Thereupon, the petitioner filed E.P.No.14 of 2001 for delivery of 1/3rd share in the suit schedule property. In the execution petition, the first respondent herein filed E.A.No.69 of 2001 under Section 47 CPC. In the said application filed under Section 47 CPC, it was stated that no notice was served on the first respondent in I.A.No.456 of 1999, which was filed for amendment of the prayer in plaint and the suit for partial partition is bad in law and consequently, the final decree passed by the trial Court cannot be executed and prayed for rejection of the execution petition. This application was resisted by the petitioner herein by filing a counter. The Executing Court, by order dated 20.09.2005, allowed the application filed under Section 47 CPC and aggrieved by such order, the petitioner has filed the present revision petition.

3. The learned counsel appearing for the petitioner would submit that the objection raised by the first respondent in E.A.No.69 of 2001 filed under Section 47 CPC was raised by him in the final decree application in I.A.No.3 of 2000, and the contentions were rejected by the trial Court and an order was passed on 10.11.2000. The first respondent having not challenged the said order, allowed the same to attain finality, is estopped from raising the same contention once over again in the application filed under Section 47 CPC. Further, it was contended that the first respondent cannot raise the plea of partial partition for the first time in a petition under Section 47 CPC, when he was set exparte in the suit and no steps were taken by the first respondent under Order 9, Rule 13 CPC. Further, if non-service of notice/summons is allowed to be raised under Section 47 CPC, the provision of Order 9, Rule 13 will become a dead letter