A third party cannot contest execution proceedings under Section 47 of the Civil Procedure Code without being a party to the original suit and must provide credible evidence of ownership.

JUDGMENT :

(SATHI KUMAR SUKUMARA KURUP, J. )

The Appellant in this Appeal is a third party to the suit as well as the Execution Proceedings in E.P. No. 4 of 2019 in O.S. No. 422 of 2007.

2. The suit in O.S. No. 422 of 2007 was filed by the Plaintiff/first Respondent in this Appeal for a declaration to declare that he is the owner of the “A” Schedule property described in the plaint and for a consequential relief of recovery of possession of “B” and “C” schedule properties from the Defendants. The suit was filed as against the Respondents 2 and 3 in this Appeal, who are arrayed as Defendants 1 and 2 in the suit.

3. In the suit, despite notice, the Defendants 1 and 2 did not appear. Therefore, they were set ex parte and an ex parte Judgment dated 30.01.2008 was passed. In order to execute the Decree, the first Respondent/Decree Holder had filed E.P. No. 4 of 2009 with a prayer to pass appropriate orders for delivery of “B” and “C” schedule properties to him and to handover it through the process of the Court. It is at this stage, the Appellant, a third party to the suit as well as the execution proceedings filed E.A. No. 47 of 2009 under Section 47 of the Code of Civil Procedure praying to declare that he is the absolute and exclusive owner of the schedule mentioned property and consequently the first Respondent/Plaintiff/Decree Holder cannot execute the decree obtained by him on 30.01.2008 in O.S. No. 422 of 2007 and allow the claim petition in his favour and dismiss E.P. No. 4 of 2009.

4. For the application filed by the Appellant/third party in EA No. 47 of 2009, the first respondent-plaintiff filed a counter affidavit and prayed for dismissal of the application.

5. Notwithstanding the filing of E.A. No. 47 of 2009, the Appellant/third party had also filed E.A. No. 124 of 2016 under Order 21 Rule 97 of CPC to declare that the Judgment and Decree dated 30.01.2008 obtained in O.S. No. 422 of 2007 is vitiated by fraud and to forbear the first Respondent/Plaintiff/Decree Holder from evicting him from the schedule mentioned property and consequently to dismiss the E.P. No. 4 of 2009. For the application in E.A. No. 124 of 2016 the first Respondent/Plaintiff/Decree Holder by filing a counter and prayed for dismissal of the same.

6. The application in E.A. No. 124 of 2016 in EP No. 4 of 2009 in O.S. No.422 of 2007 was dismissed by the trial Court on 27.09.2024. Aggrieved by the same, the present Appeal Suit No. 1020 of 2024 is filed by the Appellant/third party.

7. Pending appeal in A.S. No. 1020 of 2024, Civil Miscellaneous Petition No. 27048 of 2024 was filed praying to grant interim stay of all further proceedings in EP No. 4 of 2019 in O.S. No. 422 of 2007 on the file of the learned Principal District Judge, Chengalpattu, pending disposal of the present Appeal Suit.

8. Mr. Prabhakaran, learned Senior Counsel appearing for the Appellant submitted that the learned Principal District Judge, Chengalpattu had dismissed the petition in E.A. No. 124 of 2016 in E.P. No. 4 of 2009 on 27.09.2024 without adhering to the provisions of Order XXI Rule 97 of C.P.C. The Execution Application No. 124 of 2016 was dismissed in a summary manner by observing as below in Para 2 and 3 of the order.

"2. In view of the order passed on 09.12.2022 in this application, petitioner failed to produce documentary evidence for his claim.

3. Petitioner/3rd party failed to prove his lawful possession by acceptable documentary proof. No arguments advanced by petitioner/3rd party. No settlement reported, even though petitioner sought for reporting settlement.

4. As the result, petition dismissed. No costs.”

9. It is the contention of the learned Seni