The transferee or subsequent purchaser can maintain an application under Order I Rule 10 of CPC, and misquoting the provision of law cannot be a ground for rejecting the application.

JUDGMENT

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 16.03.2021 passed in E.A.No.1 of 2020 in E.P.No.3 of 2019 in R.C.O.P.No.12 of 2006 before the District Munsif Court, Theni by allowing this civil revision petition with cost.)

1. This civil revision petition is filed as against the fair and decreetal order passed by the executing court in E.A.No.1 of 2020 in E.P.No.3 of 2029 in RCOP.No.12 of 2006 dated 16.03.2021.

2. The petitioner herein has filed the above E.A.No.1 of 2020 under Order I Rule 10 of CPC for impleading him as party in EP.No.3 of 2019 in RCOP.No.12 of 2006.

3. The petitioner claims that he is the son of the first respondent Chandrasekaran, who is the decree holder, who filed EP.No.3 of 2019. The first respondent filed RCOP No.12 of 2006 against the second respondent and got an order of eviction. The eviction was ordered on 18.08.2015 and the first respondent has also filed an execution petition in EP.No.39 of 2015 before the Executing Court and the same was not pressed on 21.07.2017. Thereafter the first respondent again filed another execution petition in EP.No.3 of 2019 for delivery of the property against the second respondent herein. In the meantime, there was a partition among the family members and the suit property was allotted to the petitioner herein. Based on the partition dated 09.09.2016 the petitioner herein filed the above petition under Order I Rule 10 of CPC and the same was dismissed by the Executing Court that the application was filed on 11.12.2020 belatedly based on the partition deed of the year 2016 and no reason has been assigned by the petitioner for such a delay. Challenging the case the civil revision petition is filed. However, the first respondent decree holder was set ex-parte on 25.02.2021.

4. The learned Counsel for the petitioner submits that though this application is filed under Order I Rule 10 of CPC, the petition is maintainable under Order 21 Rule 16 of CPC r/w Section 146 of CPC. The subject property in the execution proceedings has been allotted to the petitioner as his share by way of a registered partition deed dated 09.09.2016. Therefore, as the subsequent owner of the property, the petitioner is entitled to execute the decree. He further submits that quoting of a wrong provision of law is not fatal and the transferee of the property can always be permitted to proceed with the execution petition. The learned Counsel relied on the following judgments of this Court in support of his case

(i) Subbanna Vs Seshagiri, reported in 1979 MLJ 385 and

(ii) Srinivasan K.Vs Nandagopal reported reported in 2001 (3) CTC 546,

5. No representation for the first respondent. He was set ex-parte in E.A.No.1 of 2020.

6. The learned Counsel for the second respondent submits that the petitioner is the son of the first respondent and the first respondent has already filed EP.No.3 of 2019 and the same is pending. Now the petitioner claiming to be the owner of the property, which is subject matter of the EP, by virtue of the registered partition deed dated 09.09.2016 filed an E.A.No.1 of 2020. The EP is filed in the year 2019 and there is no reference about the partition deed and the petitioner has not been added as party.

7. As per the provisions of the Civil Procedure Code, the decree holder alone can file the petition to execute the decree and As per Order 21 Rule 16 CPC, the transferee or assignee can file execution petition but individually or by way of substitution of the original petitioner as per Section 46 CPC. But in this case, the petition is not filed under Order 21 Rule 16 CPC, since the petitioner has not filed it individually or seeking for substitution as under Section 46 CPC, but filed a petition for impleading him as party under Order I Rule 10 CPC. Hence on legally and technically this petition is not sustainable, as the Executing Court cannot deliver the property when the decree holde