IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2022 CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI C.R.P.No.2002 of 2019

1. M.Duraisamy (Died) vide separate sheet attached

2. D.Shanthi 3. D.Radhika

4. D.Thanikachalam

5. D.Madhavi

6. D.Rajesh

7. D.Vinothkumar

8. D.Alexpandian ...Petitioners Petitioners 3 to 8 brought on record as LRs of the deceased P-1viz.M.Duraisamy vide court order dated 16.06.2022 made in CMP.No.14157 of 2021 in CRP.No.2002 of 2019.

Vs.

S.Vasanthi ...

Respondent PRAYER: Civil Revision Petition filed under Sec.115 of Civil Procedure Code, praying to set aside the fair and decreetal order dated 10.04.2018 passed by the Subordinate Judge, Kancheepuram in E.A.No.242 of 2016 in E.P.No.175 of 2012 in O.S.No.49 of 2007.

For Petitioners : Mr. S.L.Sudharsanam For Respondent : Mr.R.Prabakar

O R D E R

This Civil Revision Petition has been filed seeking to set aside the fair and decreetal order dated 10.04.2018 passed by the Subordinate Judge, Kancheepuram in E.A.No.242 of 2016 in E.P.No.175 of 2012 in O.S.No.49 of 2007.

2. The learned counsel for the revision petitioners/Judgment debtor submitted that the respondent/decree holder filed E.A.No.242 of 2016 in E.P.No.175 of 2012 for delivery of possession in respect of the suit property based on the sale deed was executed through Court in specific performance suit in O.S.No.49 of 2007 that was not maintainable since because the trial Court has not followed the procedure as contemplated under Order 21 rule 35 of CPC, it should have issued notice to the Judgment debtor in EP.No.175 of 2012 but it ordered for delivery without giving any notice as such is totally erroneous and liable to be set aside. Further, he also contended that the respondent/ plaintiff obtained the ex-parte decree to execute the sale deed and the petitioners/Judgement debtor also filed a petition to set aside the above said decree but the same was not numbered. Thereafter, the revision petitioners/Judgment debtors filed a petition under Section 47 r/w Section 151 of CPC prayed to dismiss the execution petition in E.P.No.175 of 2012. However, the Execution Court had dismissed the E.A.No.246 of 2018 filed by the petitioners/Judgment debtor and allowed the E.A.No.242 of 2016 which is not sustainable on merits. Hence, he prays to allow the revision petition.

3. The learned counsel for the respondent/Decree holder argued that originally in the year 2007, the respondent/plaintiff filed a suit in O.S.No.49 of 2007 on the file of the Subordinate Judge, Kancheepuram for the relief of specific performance and directing the defendants to execute the sale deed. Thereafter, the notice was served and the petitioners/Judgment debtor has not filed a written statement, hence, the ex-parte order was passed. After 5 years, they filed the execution petition to execute the said decree, accordingly, the sale deed was executed and taken delivery of possession.

Hence, she filed E.A.No.242 of 2016 for delivery of possession of the property detailed in the scheduled in the said E.P.No.175 of 2012 on the basis of decree and Judgment in O.S.No.49 of 2007, which was taken on file, the defendants/Judgment debtor were set ex-parte for the reason that they already remained ex-parte in the suit. Therefore, without issuing notice, disposed the order for delivery and subsequently, the delivery was recorded. The Execution petition was also closed by following the proper procedure and the trial Judge had executed the decree, which needs no interference.

Hence, he prayed to dismiss the revision petition.

4. Considering both side submissions, on perusal of the records, it reveals that from the beginning of the E.A.No.242 of 2016 the defendants/Judgment debtor were remained set ex-parte and 3 more occasions, the defendants/Judgment debtor attempted to file the petition to set aside the ex-parte decree and the same was returned, it could not be represented and there is a mistake on the side of the defendants.

5. Further, it reveals that in E.P.No.175 of