The main legal point established in the judgment is that a revision cannot be entertained under Section 115 of the Code of Civil Procedure, 1908 against an order passed in a proceeding under Order 21 Rule 97.

JUDGMENT

(Prayerin C.M.P.:- This Civil Miscellaneous Petition filed under Section 5 of the Limitation Act, to condone the delay of 26 days in filing the above Civil Revision Petition.

in C.R.P.:- The Civil Revision Petition filed under Article 227 of the Constitution of India, to call for the records relating to the impugned fair and decreetal order dated 04.11.2022 made in E.A.No.17 of 2021 in E.P.No.17 of 2015 in O.S.No.161 of 2007 on the file of the District Munsif Court, Sivagangai and set aside the same.)

1. This Civil Miscellaneous Petition has been filed by the petitioner to condone the delay of 26 days in filing the above Civil Revision Petition.

2. The above Civil Revision Petition has been filed by the petitioner against the fair and decreetal order dated 04.11.2022 passed by the District Munsif Court, Sivagangai in E.A.No.17 of 2021 in E.P.No.17 of 2015 in O.S.No.161 of 2007.

3. According to the petitioner, the petitioner filed an application under Order 21 Rule 97 of the Code of Civil Procedure, 1908 which was dismissed by the Executing Court without considering the objections made by the petitioner.

4. The learned counsel appearing for the petitioner would submit that the Executing Court ought to have seen that though the first respondent/plaintiff has claimed the entire suit properties belonging to his family, when those public utilities are available in certain portions, the parties to the suit being family members of the first respondent and subsequent purchaser, the entire property ought to have been surveyed and measured by a senior bailiff along with Surveyor and Village Administrative Officer.

5. It is therefore submitted that the Executing Court without appreciating the endeavour made by the petitioner to prevent miscarriage of justice in the event of ordering delivery of possession, erroneously dismissed the application filed by the petitioner vide order dated 04.11.2022, against which, the present Civil Revision Petition has been filed.

6. On the other hand, the first respondent/plaintiff who appears as partyin- person would submit that he filed the suit in O.S.No.161 of 2007 for partition of the suit properties, and declaration of Sale Deed as null and void and not binding on the first respondent/plaintiff and for mandatory injunction to demolish the house constructed in the suit property and to hand over the vacant possession of the suit properties. The first respondent/plaintiff would further submit that the Trial Court has decreed the suit and ordered the suit properties to be divided and allot 1/7th share to the first respondent/plaintiff and granted relief of the mandatory injunction for demolition of the house constructed in the portion allotted to the first respondent/plaintiff and also granted permanent injunction from alienating and encumbering any part of the suit parties to any third parties. However, the Trial Court has dismissed the prayer for cancellation of Sale Deed.

7. Against the Judgment and Decree passed by the Trial Court, the defendants preferred an appeal before the Sub Court, Devakottai in A.S.No.41 of 2010, whereas, the first respondent/plaintiff preferred an appeal in A.S.No. 42 of 2010. By a common Judgment and Decree dated 15.11.2010, the Sub Court, Devakottai allowed A.S.No.42 of 2010 filed by the first respondent/plaintiff and dismissed A.S.No.41 of 2010 filed by the defendants.

8. The defendants thereafter preferred the second appeal before this Court in S.A.(MD) No.683 of 2011 against the Judgment and Decree dated 15.11.2010 passed by the Sub Court, Devakottai in A.S.Nos.41 & 42 of 2010. The second appeal was also dismissed on 14.03.2012, thereby, the claim of the first respondent/plaintiff was confirmed.

9. The first respondent/plaintiff thereafter filed Execution Petition before the District Munsif Court, Sivagangai in E.P.No.17 of 2015. It is submitted that the District Munsif Court, Sivagangai by its order dated 18.08.2015 directed to hand over the vacant possession of the suit