The central legal point established in the judgment is the jurisdiction of the executing court to determine the genuineness of a Will and order delivery of possession of properties in execution proceedings.

1. Challenging the order dated 05.12.2017 passed in E.P.No.36 of 2014 in O.S.No.6 of 2002 on the file of the learned I Additional Sub-Court, Nagercoil, allowing E.P.No.36 of 2014 and ordering delivery of the properties by 05.01.2008, the petitioner has filed this Civil Revision Petition. The petitioner herein is the third defendant and the first respondent is the plaintiff in the suit.

2. For convenience, the petitioner herein is referred to as judgment- debtor and the first respondent is referred to as the decree- holder.

3. The decree-holder has filed the suit being O.S.No.6 of 2002 for passing a preliminary decree for partition and separate possession of her 1/8th share in the suit properties by metes and bounds and also past and future mesne profits.

4. By the judgment and decree dated 19.04.2004, preliminary decree for partition of 1/8th share in the suit properties was passed by the trial Court in favour of the plaintiff.

5. The first defendant filed I.A.No.601 of 2005 seeking to pass a supplementary preliminary decree in her favour. By an order dated 28.11.2005, the trial Court had passed supplementary preliminary decree in favour of first defendant. Pursuant to the preliminary decree, the first defendant filed I.A.No.264 of 2012 under Order 20, Rule 18 of C.P.C. for passing a final decree for partition of 1/8th share in the suit properties alleging that the plaintiff had filed E.P.No.34 of 2010 and took delivery through the Court and the said E.P. was terminated on 27.08.2012. By an order dated 17.07.2013, the trial Court had passed final decree, thereby allotting II portion to the first defendant as shown in the Commissioner's plans in Item No.1 to 10 of the suit properties.

6. The decree-holder has filed E.P.No.36 of 2014, seeking delivery of the property, which was allotted to the share of the first defendant from the hands of fourth defendant alleging that the first defendant Thangammal died on 16.09.2013 while she was staying with the decree-holder. According to the decree-holder, while Thangammal was alive, on 19.05.2003 she executed a Will bequeathing her share to be allotted in O.S.No.6 of 2002 in favour of the decree-holder. Hence, the decree-holder has filed E.P.No.36 of 2014 for delivery of the properties, which were allotted to the share of the first defendant in O.S.No.6 of 2002.

7. Resisting E.P.No.36 of 2014, the judgment-debtor filed counter stating that the Execution Petition is not maintainable and the Executing Court has no jurisdiction to travel beyond the final decree already passed. It is stated that the Executing Court cannot take the role of a trial Court and the word “execution” does not include deciding of title. As such the execution proceedings initiated by the decree-holder was totally wrong and ought not to have been numbered. It is stated that if the decree-holder wants to claim right as a legatee she should have filed separate probate proceedings or succession proceedings. The decree-holder wants to engulf the whole property. On the death of mother, the properties will be inherited by all legal heirs and the share of the parties will be enlarged. It is stated that deciding validity of a Will amounts to deciding the title of the party. If the execution is ordered that amounts to denying the right of his appeal against the decree for title.

8. The judgment-debtor has also filed E.A.No.151 of 2016 under Order 7, Rule 11 read with Section 151 of C.P.C. to reject E.P.No.36 of 2014.

9. Before the trial Court, both the petitions were taken up together. On the side of the decree-holder, three witnesses were examined and Exs.P1 to P11 were marked. On the side of the judgment-debtor, four witnesses were examined and no documents were marked.

10. Upon consideration of the rival submissions, the Executing Court, allowed E.P.No.36 of 2014 thereby ordered delivery of possession of the properties on 05.01.2018 and dismissed E.A.No.151 of 2016 filed by the judgment-debtor. Aggrieved by the order passed