COMMON ORDER

CRP(MD)No.249 of 2021 has been filed by a third party to the suit in O.S.No.8/2011 on the file of Additional District Court at Dindigul. The parties in the revision petition are described as per the nomenclature allotted in the suit.

2.The 1st respondent in the revision petition is the plaintiff/decree holder. The 2nd respondent in the revision petition is the 1st defendant in the suit and one Perumal Naidu who died during the pendency of the proceedings is the 2nd defendant. The suit was filed for specific performance and the suit was decreed on 04.06.2012 as against the 1st defendant.

3.The plaintiff filed E.P.No.2/2014 seeking execution of sale deed against Rajapandi(D1). As he remained exparte, the Court itself executed sale deed on 01.07.2016. Thereafter, the decree holder filed E.P.No.70/2019 seeking delivery of possession. Pending E.P., one Balammal wife of Perumal Naidu filed E.A.No.61/2019 claiming title to the property based upon the will dated 25.09.1995. After enquiry, E.A.No.61/2019 was dismissed on 06.01.2021 on merits.

4.Pending claim petition, the decree holder filed application for removing the constructions to break open the property and police aid. The claim of the objector was that he is the tenant of Perumal Naidu and later he became the tenant of Balammal and that he should not be dispossessed. The objections were overruled. Hence the objector filed CMA(MD)No.143/2021.

5.Perumal Naidu died on 02.11.2010. Before death, apart from executing the will dated 25.09.1995, he also executed a sale deed in favour of Rajapandi(R2 herein). Balammal was also a witness to the sale deed. Thereafter, Rajapandi who had insured the suit property and also had obtained loan from South Indian Bank, was unable to repay the loan. He requested the assistance of the plaintiff Shanthi and entered into a sale agreement on 21.01.2008. Since the 1st defendant did not honour the agreement, suit was filed by the plaintiff in O.S.No.8/2011. Application was filed to bring the legal heirs of Perumal Naidu namely, Balammal. The trial Court held that as the sale agreement is only between Rajapandi/1st defendant and Shanthi/plaintiff, there is no need to implead the legal heir of Perumal Naidu. The petition was dismissed under Order 22 Rule 4 holding that Balammal is unnecessary party to the suit. Balammal did not challenge the dismissal order. Ultimately, suit was decreed on 04.06.2012. This decree has become final as there was no appeal either by the vendor Rajapandi or by Balammal, the alleged legal heir of Perumal Naidu. Only after a lapse of 5 years on 04.03.2016, she filed an objection petition in the execution stage.

6.The main contention raised by the learned counsel for the revision petitioner is that the claim petition ought not to have been dismissed by the executing court as the claim petitioner was not permitted to be impleaded in the suit in O.S.No.8/2011 during trial and therefore, the claim is legitimate and it ought to have been allowed.

7.The contention raised by the learned counsel for the plaintiff/decree holder is that the claimant's husband who is the vendor to her vendor was added only as a formal party. The claimant's husband died on 02.11.2010. The suit was filed on 12.11.2011. Therefore, impleading petition was filed to implead the claim petitioner herein as the 3rd defendant in the suit. She was examined and she produced the death certificate of her husband. The claim that the impleading petition was time barred was accepted and the impleading petition was dismissed. It is pointed out that this dismissal does not prevent Balammal/claim petitioner either to file separate impleading application urging her ground of claim or to file an independent suit to establish her title when the suit itself was filed by Shanthi(decree holder) for specific performance of the sale agreement executed by a third party. No step has been taken at that point of time. Even at the subsequent point of time opportunity given by this