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2012 Supreme(Mad) 985

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN
Jameela Bee
Versus
Ragupathy & Others
C.R.P.(NPD)Nos.2512 of 2009, 2590 of 2010, M.P.No.1 of 2009 & M.P.No.1 of 2010
Decided On : 24-02-2012

Advocates Appeared:
For the Petitioner:G. Rajan, Advocate.
For the Respondents: R1- S. Muthukumar, RR2 & R3- Given up.

The main legal point established in the judgment is that the principles of res judicata apply when a finding is given by a court of competent jurisdiction and has attained finality. Additionally, the court emphasized the importance of jurisdictional competence in executing decrees.

Headnote:

Execution Petition - Jurisdiction - Limitation Act - Res Judicata - Code of Civil Procedure

Fact of the Case:

The plaintiff filed a suit for declaration and recovery of possession of the suit properties, which was decreed. The plaintiff faced challenges in executing the decree due to jurisdictional issues and limitation. The revision petitioner contended that the Execution Petition was barred by limitation and res judicata due to earlier dismissed petitions. The respondent argued that the decree was modified, and the Execution Petition was within the limitation period. The court analyzed the merger of decrees, res judicata principles, and jurisdictional issues.

Finding of the Court:

The court found that the Execution Petition was not barred by limitation as the decree had merged with a modified decree, and it was filed within the limitation period. The court also held that the earlier dismissed petitions did not operate as res judicata due to lack of finality and jurisdictional issues. The court upheld the maintainability of the Execution Petition and the consequential relief sought.

Issues: The issues involved jurisdictional challenges, limitation period for filing the Execution Petition, and the applicability of res judicata principles to the dismissed petitions.

Ratio Decidendi: The court's decision was based on the merger of decrees, principles of res judicata, and jurisdictional competence. It emphasized that res judicata applies when a finding is given by a court of competent jurisdiction and has attained finality.

Final Decision: The court dismissed the civil revision petitions and upheld the maintainability of the Execution Petition. It also dismissed the connected miscellaneous petitions.

Judgment :-

1. The first defendant in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam is the revision petitioner in both the revisions.

2. The first respondent filed the suit in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam for declaration and recovery of possession of the suit properties from the defendants in that suit. The suit was decreed by judgment and decree dated 14.12.1987 and the plaintiff was declared as owner of the suit property and the first defendant was directed to hand over vacant possession within a period of two months. The first appeal filed in A.S.No.196 of 1988 on the file of the District Court, Cuddalore was also dismissed and in the Second Appeal in S.A.No.1041 of 1991, this court confirmed the decree regarding declaration and further directed the first and second defendant to hand over possession of the suit property to the plaintiff. Thereafter, the plaintiff filed E.P.No.13 of 2003 in O.S.No.69 of 1986 (Sub Court, Tindivanam) before the District Munsif, Gingee on the ground that due to change of jurisdiction, both territorial and pecuniary, the decree can be executed only before the District Munsif Court, Gingee. E.P.No.13 of 2003 was dismissed by the District Munsif, Gingee holding that the execution petition can be filed by the decree holder only before the court which passed the decree viz., the Sub Court, Tindivanam and without transfer of the decree as provided under the Code, the decree cannot be executed before that court by virtue of section 37 of the Code of Civil Procedure. It was further held that E.P.No.13 of 2003 was not maintainable as the District Munsif has no jurisdiction to entertain the application. Thereafter, the plaintiff filed another Execution Petition in E.P.No.189 of 2004 before the District Munsif, Gingee and that petition was also dismissed holding that earlier application in E.P.No.13 of 2003 was dismissed on merits and therefore, without filing a revision challenging the order passed in E.P.No.13 of 2003, the second Execution Petition in E.P.No.189 of 2004 was not maintainable. Thereafter, the plaintiff/decree holder applied for transfer of the decree passed in O.S.No.69 of 1986 by filing E.A.No.115 of 2007 and after getting an order, filed E.P.No.22 of 2008 to execute the decree. That petition was opposed by the revision petitioner stating that the present Execution Petition is barred by res judicata as earlier E.P.No.13 of 2003 and E.P.No.189 of 2004 filed before the District Munsif, Gingee were dismissed on merits and without impleading the legal representatives of the second respondent, the transfer ordered by the Sub Court, Tindivanam transferring the decree passed in O.S.No.69 of 1986 is not valid. That Execution Petition was allowed and against the same, the revision petitioner filed C.R.P.No.2512 of 2009.

3. In E.P.No.22 of 2008, the decree holder filed E.A.No.386 of 2009 to measure the property to be delivered with the help of Surveyor, to direct the Junior Engineer to disconnect the E.B. Service connection and to direct the Inspector of Police, All Women Police Station to give suitable police protection while effecting delivery and that application was allowed and against that order the revision petitioner filed C.R.P.No.2590 of 2010.

4. It is submitted by the learned counsel for the revision petitioner that admittedly, the decree was passed in O.S.No.69 of 1986 on 14.12.1987 granting decree of declaration and recovery of possession and as per Article 136 of the Limitation Act, Execution Petition ought to have been filed within a period of twelve years from the date of decree. Admittedly, E.P.No.22 of 2008 was filed beyond the said period viz., on 8.8.2007 and therefore, E.P.No.22 of 2008 is barred by limitation. He further contended that having regard to the dismissal of E.P.No.13 of 2003 and E.P.No.189 of 2004, the present E.P.No.22 of 2008 is also barred by res judicata and therefore, the courts below erred in allowing the Execution A















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