Advocates:
['M/S S L SUDHARSANAM', '', 'K VARATHAN', 'm/s r prabakar', '', 'p marudhupandiyan']

C.R.P. No.2002 of 2019

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

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C.R.P. No.2002 of 2019

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

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C.R.P. No.2002 of 2019

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.

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C.R.P. No.2002 of 2019

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