O R D E R

This Civil Revision Petition has been filed seeking to set aside the docket order dated 04.03.2024 made in E.A.C.F.R.No.740 of 2024 in E.P.No.07 of 2019 in O.S.No.419 of 1992 on the file of the Principal District Munsif Court, Pollachi.

2. The petitioner is the 81st defendant in the suit filed by the respondent/plaintiff in O.S.No.419 of 1992 on the file of the Principal District Munsif Court, Pollachi, for declaring his share and permanent injunction. The preliminary decree was passed in the suit on 26.02.1993 and the final decree was passed on 29.06.2007. The petitioner has not preferred any appeal against the same. Thereafter, the respondent/plaintiff had filed an execution petition in E.P.No.07 of 2019 for execution of the decree. While so, the petitioner had filed a petition in E.A.C.F.R.No.740 of 2024 under Section 47 of the Code of Civil Procedure, raising various issues beyond the decree. The executing Court without numbering had rejected the application as not maintainable holding that the executing court cannot go beyond the decree, since the questions raised and decided by the trial Court cannot be be again raised in the execution proceedings. The present revision petition has been filed challenging the docket order dated 04.03.2024 passed by the executing Court by going into the merits of the case and rejecting it as not maintainable, even without numbering the same.

3. Learned counsel for the petitioner submitted that the Executing Court, even without numbering the petition, has gone to decide the merits of the case and held that the petition is not maintainable. He further submitted that such order cannot be passed by the executing Court even without numbering the petition. In support of his contention, he relied upon the judgment in the case of K.Venkatesan & Others Vs. E.Hemantharaj reported in CDJ 2016 MHC 562, wherein it has held as follows :

“ 6. Though the said contention cannot be raised by the Judgment Debtors in the Section 47 application in view of the above referred judgment, the Executing Court had rejected the petition going into the merits without numbering the application. The Executing Court could have disposed of the application after numbering the application filed under Section 47 of the Civil Procedure Code. If an application filed under Section 47 is rejected on the question of maintainability, then there is no necessity for going into the merits of the matter. If the Court goes into the merits of the matter, then the application has to be numbered.”

4. This Court, in the above judgment, has held that if any application filed under Section 47 of CPC is rejected on the question of maintainability by the Executing Court, then there is no requirement to go into the merits of the matter and if the Court decides to go into the merits of the matter, then the application has to be numbered and the order has to be passed. The above said judgment has also been relied on by this Court in C.R.P.No.3645 of 2016 dated 05.03.2021.

5. In the case on hand, the Executing Court had rejected the petition filed under Section 47 of CPC as not maintainable for the reason that the issues raised in the application filed under Section 47 of CPC were raised already before the trial Court.

6. In view of the above, this Civil Revision Petition stands allowed and the docket order dated 04.03.2024 in E.A.C.F.R.No.740 of 2024 in E.P.No.07 of 2019 in O.S.No.419 of 1992 on the file of the Principal District Munsif Court, Pollachi, is hereby set aside. It is made clear that the Execution Court is directed to number the petition and pass orders on merits and in accordance with law within a period of four weeks from the date of numbering the petition. Consequently, connected miscellaneous petition is closed. No costs.

25.09.2024 Issue Order copy on 26.09.2024 Note : Registry is directed to return the original papers to the counsel for the petitioner Index : Yes / No Neutral Citation : Yes / No ham To The Principal District Mu