ORDER

The decree holder in O.S.No.654 of 1980 is the appellant before me. The proceeding arises out of an execution.

2. O.S.No.654 of 1980 was a suit for Specific Performance of an agreement of sale. The said suit was decreed on 25.02.1987. A direction was given to pay the balance sale consideration of Rs.55,000/- on or before 25.05.1987 and to take delivery of property. Aggrieved by judgment and decree, a regular appeal was preferred before this Court in A.S.Nos.394 and 395 of 1987. The said appeals were dismissed by judgment dated 16.12.2002. 3. Pending first appeal, in A.S.No.394 of 1987, a stay application was moved in C.M.P No.8351 of 1987. The stay application was heard along with vacate stay petition in C.M.P No.12093 of 1993. A condition was imposed that on payment of the suit costs, the stay will be made absolute. Suit costs was not paid and therefore, the stay was vacated on 08.02.1994. Pursuant to the stay having been vacated, an execution petition in E.P.No.90 of 1994 was filed. The said execution petition was originally filed before the Subordinate Court, Arakkonam. Due to change in pecuniary jurisdiction of the Court, the same was transferred to District Munsif Court, Arakkonam.

4. It was the case of the petitioners that they were not aware of the transfer of the decree to Arakkonam and therefore, they were not in a position to appear before the Court on 28.02.2005. Hence they filed an application under Order 21 Rule 106 read with Section 151 of Civil Procedure Code. The learned District Munsif dismissed E.A.No.72 of 2005 (application filed under Order 21 Rule 106 of CPC) by order dated 14.02.2006. Against which, Civil Miscellaneous Appeal was preferred in CMA No.1 of 2007. The CMA was allowed on 07.04.2010 and remanded to District Munsif Court, Arakkonam. Aggrieved over the same, the present CMSA No.17 of 2010 has been filed. The order under challenge is not a decree or even a deemed decree. Therefore, an appeal is not maintainable. Nonetheless, it is revisable by the Court. Hence, I heard it as a revision.

5. I have my own doubts as to whether CMSA is maintainable, but for the purpose that the order I am going to pass, it is irrelevant because even if it is to be treated as a Civil Revision Petition, it would still lie before this Court.

Therefore, I hear the matter on merits.

6. Heard Mr.M.Sriram for the appellant and Mr.T.M.Hariharan for the respondents 1, 2 and 4.

7. Mr.M.Sriram, learned counsel would bring to my notice that it matters not whether notice was issued to the petitioner in the execution petition since the execution petition was pending from 1990 and the decree holder had deposited all the money as required as per the decree and further after serious contest, the first appeal before this Court was dismissed on 16.12.2002.

8. Mr.T.M.Hariharan would submit that a fraud had been played on the Court by virtue of the fact that the persons whom his clients had not authorised viz.,M/s.Ammer and Jayasankar, had appeared on their behalf. He adds, the appellants were not aware of the said counsel nor had any connection with them. He would state that a drama of appearance came to be enacted at the instance of one Mr.Ananthan, who is the counsel and the husband of the decree holder Premila in O.S.No.654 of 1980. He would therefore plead that the order of the remand be sustained and CMSA be dismissed.

9. I have carefully considered the arguments of either side.

10. It is not in dispute that O.S.No.654 of 1980 was decreed by a judgment and decree of the learned Additional Subordinate Judge, Vellore dated 25.02.1987. It is further admitted case of both sides that as against O.S.No.654 of 1980, an appeal was preferred before this Court in A.S.Nos.394 and 395 of 1987. The said appeals were dismissed after contest on 16.12.2002. In fine, the decree for specific performance had been confirmed and has attained finality.

11. The execution petition was initiated on account of the fact that the respondents did not comply with t