Legal representatives are bound by their predecessor's positions in litigation and cannot seek to alter the status established in prior proceedings.

ORDER :

P.B. BALAJI, J.

1. A third party to the proceedings filed an Application under Section 47 of CPC to declare that the Execution Petition is not maintainable and the decree cannot be executed. The said Application was dismissed by the Trial Court, as against which the present Revision Petition has been filed.

2. I have heard Mr.W.M.Abdul Majeed, learned counsel for the petitioner and Mr.P.Valliappan, learned Senior Counsel for Mr.S.M.S.Sriram Narayanan, learned counsel appearing for the respondents.

3. The learned counsel for the revision petitioner Mr.W.M.Abdul Majeed, would contend that the father of the revision petitioner was a party to the suit and initially, a decree was passed as against which, the defendants including the father of the petitioner preferred an Appeal. The First Appeal preferred by the defendants, including the father of the revision petitioner, was allowed by the Additional District Court, Cuddalore. As against the same, the respondents moved this Court by way of Second Appeal in S.A. No.226 of 2004. In the Second Appeal, the petitioner's father was arrayed as the second respondent. However, the petitioner's father was given up by the respondents and thereafter, the Second Appeal was allowed and in order to execute the decree in their favour, the respondents filed an Execution Petition. In the said Execution Petition, the revision petitioner contending that he is in possession of the decreetal property filed an Application under Section 47 of CPC. It is the case of the revision petitioner that his father left the family without any information and his whereabouts are not known even today and it is only the petitioner and his family, who continue to reside in the decreetal property.

4. Mr.Abdul Majeed, learned counsel for the petitioner would contend that when the petitioner’s father had been given up in the Second Appeal, there was no decree against the petitioner’s father and in such circumstances, the decree cannot be executed against the petitioner who is in possession of the property. He would therefore state that the Executing Court without considering the said moot point, has erroneously dismissed the Section 47 Application. He has relied on the following decision in support of his contentions, Kishun (Dead) through Lrs. Vs. Bihari (D) by Lrs., reported in (2005) 6 SCC 300 .

5. Per contra, Mr.P.Valliappan, learned Senior Counsel appearing for the respondents/decree holders would invite my attention to the written statement filed by the defendants in the suit before the Trial Court, where the petitioner’s father has adopted the written statement filed by the third defendant where it has been stated that it is only the first defendant and the third defendant who are in possession of the suit property by paying house taxes. Referring to the said written statement, Mr.P.Valliappan, learned Senior Counsel would state that the father of the petitioner having adopted the said written statement, has conceded the fact that he was not in possession of the suit property. Therefore, it is contended by Mr.P.Valliappan, learned Senior Counsel that the petitioner cannot take a different or better stand then what his father had taken before the Trial Court. He would therefore state that when the petitioner’s father has not been in possession, the petitioner cannot now seek to question the executability of the decree, which is only against the other defendants who have admittedly plead in possession of the property. Mr.P.Valliappan, learned Senior Counsel would further rely on the following decisions in