( 1. ) THE civil revision petition arises out of an order passed by the Executing Court dismissing the application filed by the legal representatives of the judgment debtor, seeking restitution under Section 144, CPC.

( 2. ) HEARD Mr.K.N.Thampi, learned counsel for the petitioners, Mr.G.Prabhu Rajadurai, learned counsel for the first respondent and Mr.A.Arumugham, learned counsel for respondents 2 and 3.

One Mr.Sheik Mytheen and his mother Mytheen Beevi filed a suit in O.S.No.420 of 1976 on the file of the District Munsif Court, Padmanabhapuram, against one Shahul Hameed, praying for a decree of recovery of possession, together with mesne profits. The plaint schedule described the property sought to be recovered as a Coffee Shop building located on the South-eastern portion of a land of an extent of 14. cents in Survey No.19/1, Thakkalai, situate on the North of Thuckalay-Thiruvananthapuram Road, on the West of Azhagiya Mandapam-Mekka Mandapam Road, on the East of Survey No.20 and on the South of Survey No.14.

( 3. ) BY a judgment and decree dated 05.7.1977, the Additional District Munsif, Padmanabhapuram, decreed the suit, directing the defendant Shahul Hameed to vacate and deliver vacant possession of the suit property and also directing payment of arrears of rent.

( 4. ) THE first appeal filed by the defendant Shahul Hameed in A.S.No.141 of 1977 was dismissed by the Sub Court, Padmanabhapuram, by a judgment and decree dated 16.7.1981. THE second appeal filed by the defendant in S.A.No.1372 of 1981 was also dismissed by this Court by a judgment dated 09.11.1990.

Thereafter, the first plaintiff Sheik Mytheen filed E.P.No.140 of 1990 for the execution of the decree. In the Execution Petition, the Executing Court passed the following order: "TAMIL "

( 5. ) HOWEVER, on 19.4.1991, a petition for advancing the hearing of the E.P., filed on behalf of the decree holder was allowed, the hearing of the E.P. was advanced from 29.4.1991 to 19.4.1991 and the Executing Court not only recorded delivery, but also closed the execution petition.

( 6. ) AFTER one year of the delivery being recorded, the judgment debtor Shahul Hameed filed an application in E.A.No.161 of 1992 before the Executing Court seeking re-delivery of the portion of the property allegedly taken possession in excess of the decree passed in the suit. This application was filed by the judgment debtor purportedly under Sections 47 and 151, CPC. Actually, the prayer made in E.A.No.161 of 1992 was "to declare the delivery effected in E.P.No.140 of 1990 as excessive and null and void".

By an order dated 30.10.1992, the Principal District Munsif, Padmanabhapuram, dismissed the said application, holding that there was no excess delivery and that the judgment debtor failed to prove either his right or his possession of the portion of the property in respect of which he was seeking re-delivery.

( 7. ) AS against the said order dismissing E.A.No.161 of 1992, the judgment debtor filed a revision petition in CRP No.3291 of 1992 on the file of this Court. The revision petition was allowed by this Court by an order dated 26.11.1997, with a direction to the decree holder to re-deliver the excess portion of the property other than the one for which the decree was passed. It must be noted that the decree holders did not appear in the civil revision petition and the order was passed in their absence. Paragraphs 5 to 7 of the order dated 26.11.1997 passed in CRP No.3291 of 1992, reads as follows:

"5. I have gone through the entire pleadings and also the order included in this revision. I am unable to countenance the reasons given by the lower court in dismissing the petition. The lower Court has failed to note that under the decree, the decree holder was entitled to take delivery of the southern shop within a plot having an extent of 14. cents. The lower Court has overlooked that the Amin who gave the delivery of property to the decree holder took delivery of the entire 14. cents of l