C.R.P (NPD).No.1455 of 2022 and

C.M.P.No.7525 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.06.2022

CORAM:

THE HON'BLE Ms.JUSTICE R.N.MANJULA

C.R.P (NPD).No.1455 of 2022 and

C.M.P.No.7525 of 2022

Soundarraj

... Petitioner

Vs.

Kalimuthu (died)

1.Kaliammal

2.Vasanthamani

3.Muthulakshmi

4.Kumaravel

5.Ramadoss

6.Selvaraj

... Respondents

PRAYER : Civil Revision Petition is filed under Section 115 of C.P.C., to set

aside the fair order dated 24.03.2022 made in E.A.No.01 of 2021 in

E.P.No.280 of 2014 in O.S.No.134 of 2014 on the file of II Additional

Subordinate Judge's Court, Coimbatore.

For Petitioner

: Mr.A.E.Ravichandran

For Respondents : Mr.Suryaselvan

1/6

https://www.mhc.tn.gov.in/judis

C.R.P (NPD).No.1455 of 2022 and

C.M.P.No.7525 of 2022

O R D E R

This civil revision petition has been filed to set aside the fair order

dated 24.03.2022 made in E.A.No.01 of 2021 in E.P.No.280 of 2014 in

O.S.No.134 of 2014 on the file of II Additional Subordinate Judge's Court,

Coimbatore.

2. Heard the learned counsel for the petitioner and the learned counsel

for the respondents.

3. The petitioner is the judgment debtor and the second defendant in the

suit filed by the deceased respondent / plaintiff for the relief of recovery of

possession and the same was decreed exparte. Since the respondent / plaintiff

died, a petition has been filed to implead the legal heirs. Subsequent to that,

execution proceedings were initiated by the decree holder. During the

pendency of the execution proceedings, an application in E.A.No.1 of 2021,

has been filed under Section 47 of C.P.C., seeking relief on the ground that

the decree is inexecutable. The learned Trial Judge dismissed the said petition.

Aggrieved over that, this civil revision petition has been preferred.

2/6

https://www.mhc.tn.gov.in/judis

C.R.P (NPD).No.1455 of 2022 and

C.M.P.No.7525 of 2022

4. The learned counsel for the petitioner submitted that there are

previous suit proceedings, in which, the deceased respondent/plaintiff had

taken a stand that he is in possession of the property; in the later suit filed in

O.S.No.134 of 2014, the plaintiff sought the relief of recovery of possession

and that there is some discrepancy in the description of property; without

these things clarified, the decree of the Court cannot be executed; hence, the

Court ought to have passed an order to the effect that the decree is an

inexecutable one.

5. The learned counsel for the respondents submitted that the petitioner

having remained exparte, has filed a petition to set aside the exparte decree;

even that petition was dismissed for default and thereafter, he filed a petition

to restore the petition filed for setting aside the exparte decree; the conduct of

the petitioner would only show that he is just delaying the proceedings with an

intention to prevent the respondents from reaping the fruits of the decree.

3/6

https://www.mhc.tn.gov.in/judis

C.R.P (NPD).No.1455 of 2022 and

C.M.P.No.7525 of 2022

6. When the Executing Court ordered “delivery” during the execution

proceedings of the decree in O.S.No.134 of 2014, it is for the Court Ameen to

go to the spot and verify whether the description of the suit property tallies

with the suit property on ground and effect delivery. The delivery warrant will

be returned by the Ameen, if at all there is any difference in the description.

Further, the other grounds which the revision petitioner wishes to make out in

this petition filed under Section 47, are the same as his defence in the suit, but,

in which he remained exparte. Without reviving the suit and contesting the

same on merits, if possible, he has taken a short cut by filing a petition under

Section 47 of C.P.C. The learned Trial Judge has rightly dealt the issue and

dismissed the petition.

7. If really the petitioner is aggrieved due to any wrong description of

the property, it is open to him