The main legal point established in the judgment is the narrow scope of Section 47 CPC, which does not allow the Execution Court to go behind the decree unless the decree is void ab initio or a nullity.

This appeal has been filed against the judgment and decree of C.M.A.No.1 of 2007 dated 11.07.2007 on the file of the Court of the Additional District Sessions Judge, Fast Track Court-III, Dharapuram, Erode District reversing the judgment and decree of E.A.No.114 of 2005 in E.P.No.29 of 2005 in O.S.No.3 of 1997 dated 04.08.2006, on the court of the Subordinate Judge at Dharapuram.

2. The claimant in E.A.No.114 of 2005, in E.P.No.29 of 2005, in O.S.No.3 of 1997 is the Appellant before this Court. She is aggrieved by the order passed by the Lower

Appellate Court in C.M.A.No.1 of 2007 dated 11.07.2007 reversing the judgment passed by the Execution Court in E.A.No.114 of 2005 in E.P.No.29 of 2005.

3. The facts which are necessary for the purpose of disposing of the Appeal are as follows:

For the purpose of convenience, the parties are referred to as per their rankings in the suit i.e., O.S.No.3 of 1997.

O.S.No.3 of 1997 was filed by the plaintiff for specific performance and a decree was passed in his favour on 20.12.1999. After passing off the decree, the plaintiff filed an Execution Petition and got the Sale Deed executed with the help of the Execution Court. Thereafter, he filed E.P.No.29 of 2005 for possession. Pending E.P.No.29 of 2005, the claimant as third party filed E.A.No.114 of 2005 under Order 21 Rule 58 read with Section 47 C.P.C.

4. The case of the claimant in E.A.No.114 of 2005 is that, she is a minor daughter of the defendant in the suit, entered into a sale agreement in respect of some items of joint family ancestral property on 31.07.1995 with the plaintiff/decree holder. The claimant was born on 09.01.1996 and thereafter she filed a suit for partition in O.S.No.78 of 1999 and in that suit, she obtained a final decree on 17.09.2001. The plaintiff/decree holder after obtaining an ex-parte decree in the suit for specific performance in O.S.No.3 of 1997, filed the present Execution Petition for getting possession. However, the claimant got possession of same property through the Execution Court by filing an Execution Petition for possession in the suit filed by her in O.S.No.78 of 1997. Therefore, as he has been in possession of the property through a validly passed decree in O.S.No.78 of 1999, the present Execution Petition filed by the plaintiff/decree holder in O.S.No.3 of 1997 for taking possession of the very same property is not maintainable and therefore, the claim petition is to be allowed.

5. This claim petition filed in E.A.No.114 of 2005 was resisted by the plaintiff/decree holder by filing a counter wherein it was stated that he already got the Sale Deed executed through the Execution Court on 31.07.1995 and the property is a self-acquired property of the judgment debtor. Having got the Sale Deed executed, now, he filed the present E.P. i.e., E.P.No.29 of 2005 for taking possession of the same property. To E.P. Proceedings, claim petition has been filed by the wife of the Judgment Debtor. In so far as the decree obtained by the claimant in O.S.No.78 of 1999 is concerned, it was stated that, that was a collusive one and the same would not bind the plaintiff/decree holder as he was not at all a party to the suit. It was further pointed out by the plaintiff/decree holder that a separate suit in O.S.No.118 of 2002 has been filed by the claimant seeking the very same relief which is now asked in E.A.No.114 of 2005 and the said suit was dismissed. Further, the judgment debtor also filed I.P.No.8 of 1997 and that was also dismissed on the ground of collusion and fraud. Hence, the plaintiff/decree holder sought for dismissal of the claim petition filed in E.A.No.114 of 2005.

6. The judgment debtor also filed a counter stating that the claim petitioner is his daughter and she is living with her mother separately. He further stated that claimant did not know about the transaction took place between the decree holder and the judgment debtor. As a partition suit was already filed by the claimant in O.S.No.78