BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 21.02.2024 Pronounced on : 18.04.2024 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD)Nos.2245 and 2246 of 2017 and C.M.P.(MD)No.10942 of 2017 Nagalakshmi ...Petitioner in both the petitions Vs.

Narayansamy (Died)

Balarengan ...Respondents in both the petitions Prayer in C.R.P.(MD)No.2245 of 2017 : This Civil Revision Petition filed under Section 115 C.P.C., to set aside the fair and executable order dated 16.08.2017 passed in the application in E.A.No.61 of 2016 in E.P.No.8 of 2013 in O.S.No.128 of 2008 on the file of the District Munsif Court, Vadipatti and thus allow this Civil Revision Petition.

Prayer in C.R.P.(MD)No.2246 of 2017 : This Civil Revision Petition filed under Section 115 C.P.C., to set aside the fair and executable order dated 16.08.2017 passed in the application in E.A.No.17 of 2017 in E.A.No.61 of 2016 in E.P.No.8 of 2013 in O.S.No.128 of 2008 on the file of the District Munsif Court, Vadipatti and thus allow this Civil Revision Petition.

(in both the petitions)

For Petitioner : Mr.J.Barathan For Respondents : Mr.S.Vikram

COMMON ORDER

The revision in C.R.P.(MD)No.2245 of 2017 is directed against the order passed in E.A.No.61 of 2016 in E.P.No.8 of 2013 in O.S.No.128 of 2008 dated 16.08.2017 on the file of the District Munsif Court,Vadipatti, dismissing the application filed under Order 26 Rule 9 of the Code of Civil Procedure.

2. The revision in C.R.P.(MD)No.2246 of 2017 is directed against the order passed in E.A.No.17 of 2017 in E.A.No.61 of 2016 in E.P.No.8 of 2013 in O.S.No.128 of 2008 dated 16.08.2017 on the file of the District Munsif Court, Vadipatti, dismissing the application filed under Order 16 Rule 1(2) of the Code of Civil Procedure.

3. The revision petitioner in both the revisions is the plaintiff and the respondent in both the revisions is the second defendant. For the sake of convenience and brevity, the parties herein will be referred as per their status / ranking in the trial Court.

4. The plaintiff has filed the suit in O.S.No.128 of 2008 against the defendants to declare that the suit property is belonging to the plaintiff and for consequential permanent injunction restraining the defendants and their men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property either by trespassing or by demolishing the compound wall. The defendants have filed a counter claim to declare that the property shown in the counter claim is belonging to them and for handing over the possession of the suit property to the defendants without any let or hindrance and for mandatory injunction directing the plaintiff to demolish the encroached wall constructed by the plaintiff measuring 2¼ feet on the western side and 2.4 feet on the eastern side. The learned District Munsif, after full-trial, has passed a judgment and decree dated 29.06.2009 dismissing the suit filed by the plaintiff and allowed the counter claim of the defendants and thereby declaring that the property shown in the counter claim is belonging to the defendants and directed the plaintiff to hand over the possession of the suit property to the defendants without any let or hindrance within three months and also directed the plaintiff to demolish the encroached wall within three months from the date of decree. Aggrieved by the said judgment and decree, the plaintiff/judgment debtor has preferred an appeal in A.S.No.131 of 2009 and the learned Principal Subordinate Judge, Madurai has passed a judgment and decree dated 05.01.2010 dismissing the appeal and thereby confirming the judgment and decree passed by the District Munsif Court, Vadipatti. Thereafter, the defendants/decree holders have laid the execution petition in E.P.No.8 of 2013 for executing the mandatory injunction of demolishing the encroached wall measuring 2¼ feet on the western side and 2.4 feet on the eastern side. The plaintiff/ judgment debtor has filed a counter statement raisin