CRP.NPD.No.3069 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.03.2021

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

CRP.NPD.No.3069 of 2016

1.Ramalingam @ Subbu Ramalingam

2.Chinnadurai @ Sridharan

..Petitioners

Vs.

1.Rangam @ Santha

Baby alias Sridevi (died)

2.Imayavaramban

3.Senguttuvan

4.Elangovan

5.Villavan

6.Bharanidharan

7.Vasanthi

..Respondents

PRAYER:

The Civil Revision Petition is filed under Section 115 of CPC

against the fair and decretal order dated 15.07.2016 passed in

unnumbered EA.No. of 2016 in EP.No.79 of 2013 in OS.No.34 of

1990 on the file of the Subordinate Judge, Chidambaram.

For Petitioners

: Mr.R.Gururaj

For Respondents

For R1

: Mr.S.Krishnasamy

R2 to 7

: Notice served

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ORDER

This civil revision petition is filed against the fair and

decretal order dated 15.07.2016 passed in unnumbered EA.No. of

2016 in EP.No.79 of 2013 in OS.No.34 of 1990 on the file of the

Subordinate Judge, Chidambaram, thereby rejected the application

under Section 47 of CPC.

2.

The petitioners are the defendants 2 and 3 in the suit

filed by the respondents for partition. The suit was decreed by the

judgment and decree dated 08.11.1993. Aggrieved by the same, the

petitioners filed appeal suit in AS.No.501 of 1994 and the same was also

dismissed by the judgment and decree dated 23.06.2008, thereby allotted

¼ share in the suit schedule property for the parties. In pursuant to the

said decree passed in the appeal suit, the respondents filed final decree

application in IA.No.329 of 2008 and the same was allowed and the final

decree was passed on 16.11.2011. In pursuant to the final decree,

Advocate Commissioner was appointed and he divisioned the property in

respect of delivery of possession. The respondents filed EP.No.179 of

2013. Thereafter, delivery was also effected on 17.06.2016. Having been

failed before the trial court as well as the appellate court, the petitioners

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CRP.NPD.No.3069 of 2016

herein after effecting delivery of possession, came forward with the

petition under Section 47 of CPC. They prayed for that the decree obtained

in the partition suit is null and void and inexecutable, directing the first

respondent to redeliver the possession of the 'C' Schedule property to the

petitioners. It is relevant to extract Section 47 of CPC as follows:

47 (1) All questions arising between the parties to

the suit in which the decree was passed or their

representatives, and relating to the execution, discharge or

satisfaction of the decree, shall be determined by the Court

executing the decree and not by a separate suit.

3.

The petition under Section 47 of CPC can be filed by the

parties to the suit relating to the execution, discharge or satisfaction of the

decree. Now the petitioners had taken a stand that the suit property was

already bequeathed by their mother by the Will dated 23.01.1953.

Therefore, the decree itself is inexecutable one. The petition under Section

47 of CPC is not maintainable after property delivered to the parties

concerned. That apart, if the petitioners seeks for redelivery of possession,

they ought to have filed petition under Order 21 Rule 99 of CPC. The

petitioners are being parties to the suit, they cannot invoke provision

under Order 21 Rule 99 of CPC.

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4.

The learned counsel for the petitioners submitted that

through the petition itself is not maintainable, it has to be numbered by

the court below and order may be passed on merits. In support of his

contention, he relied upon the judgment in the case of Harnandrai

Badridas Vs. Debidutt Bhagwati Prasad and others reported in AIR

1973 SC 2423, wherein the Hon'ble Supreme Court of India held as

follows:

6. Sec. 47 in our view should be construed liberally. As

far back as in 1892 (4), the Privy Council spoke strongly in