IMPORTANT POINT
Section 47 of the Code of Civil Procedure does not permit re-litigation of issues already resolved in prior proceedings.

ORDER :

(D. Bharatha Chakravarthy, J.) :

(Prayer: Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order dated 22.04.2024 in E.A.No.14 of 2023 in E.P.No.26 of 2014 in O.S.No.382 of 2006 on the file of the Principal District Munsif Court, Padmanabhapuram pending disposal of the above civil revision petition.)

This civil revision petition is directed against the order dated 22.04.2024 made in E.A.No.14 of 2023 in E.P.No.26 of 2014 in O.S.No. 382 of 2006 passed by the learned Principal District Munsif, Padmanabhapuram.

2. The said Interlocutory Application is filed by the judgment-debtor under Section 47 of the Code of Civil Procedure to declare that the decree is inexecutable.

3. Heard Mr.G.Prabhu Rajadurai, learned counsel appearing on behalf of the petitioner and Mr.M.Mohanaraj, the learned counsel appearing on behalf of the respondent.

4. The learned counsel appearing on behalf of the petitioner taking this Court to the plaint filed in the present suit, especially to paragraph No. 3 would point out that in the plaint, even though it is pleaded that there was a total extent of 18 cents and the predecessor of the judgment-debtor herein, namely, Chinnaiyyan Nadar also had six cents in the southern side of the suit property. Without furnishing any linear measurements and without properly describing the suit property, the suit was filed. When the defence was taken in the suit that in the absence of a prayer for recovery of possession, mandatory injunction alone cannot be granted, the same was also rejected on the ground that the petitioner's property is a different property. Therefore, when the decree was put to execution, the petitioner sought to raise the ground. Earlier, when the petitioner filed an application under Section 47 of the Code of Civil Procedure, the matter came up before this Court in C.R.P.No.2168 of 2019. By order dated 10.02.2020, this Court had directed the Executing Court to give proper instructions to the Advocate Commissioner to identify the suit property. Without properly giving any instructions, the Executing Court sought to instruct based on the version of the decree-holder alone, without considering the actual extent, which is available on the field and also without considering the house of the judgment-debtor, which is put up in his own 6 cents. Again, this petition under Section 47 is filed. The trial Court therefore ought to have considered that when it is the very case of the plaintiff that the said Chinnaiyyan Nadar also had six cents, from whom the judgment-debtor is claiming the title for the 6 cents, without identifying and earmarking the said six cents, the decree ought not to have been put into execution. If the property of the Chinnaiyyan Nadar in the southern portion of the suit property is identified, then at least the house of the petitioner will be saved. The house construction is well within the limit of six cents and therefore, the decree for mandatory injunction cannot at all be executed. Therefore, he would submit that the petition deserves to be allowed.

5. In support of his submission, the learned counsel relied upon the judgment in H.Ashraf Ali versus Chithra and another reported in 2018 SCC Online Mad 7739. More specifically, relying upon paragraph 12, in which a Co-ordinate Bench of this Court had relied upon the earlier judgment of this Court in Palaniyammal versus Nanjunda Gounder reported in 2006 Volume (3) TLNJ 680(civil), whereunder the Court had categorically held that in the absence of the description of the property, for which, it is sought for mandatory injunction cannot be effectively granted. When it is not the case of the plaintiff that he is in possession and especially, when the defendant is in occupation of the property, when no relief of recovery of possession is claimed, the same cannot be dubiously achieved by granting the relief of mandatory injunction, especially in the absence of a proper descrip