An executing court is not functus officio after the delivery of possession and closure of an execution petition if the judgment debtor subsequently trespasses into the property; the decree holder can seek recovery of possession without filing a fresh suit.

Prayer:

Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order passed in E.A.No.90 of 2018 in E.P.No.76 of 2019 in O.S.No.27 of 2016 on the file of the Principal District Munsif, Poonamallee, dated 07.03.2022.

ORDER

The decree holder is the revision petitioner, aggrieved by the order of the Executing Court in E.A.No.90 of 2018, in and by which, the Executing Court has dismissed the application filed by the petitioner-decree holder under Section 50 of the Code of Civil Procedure.

2.I have heard Mr.R.Ramanlaal, learned counsel for the petitioner. Despite service of notice on the respondents and their names also printed in the cause list, there is no appearance on the side of the respondents.

3.The learned counsel for the revision petitioner would submit that pursuant to decree in O.S.No.27 of 2016 on the file of the Principal District Munsif Court, Poonamallee, delivery was effected on 27.01.2017 and thereafter on 31.01.2017, recording the fact that delivery had been taken, the EP was also closed. Thereafter on 10.03.2017, the judgment debtor trespassed into the same property and soon thereafter on 04.07.2017, he died. In order to recover possession from the legal representatives of the deceased judgment debtor, the petitioner took out an application in E.A.No.90 of 2018 under Section 50 of CPC to recognize the respondents 2 to 7, as legal representatives of the deceased 1st respondent. The Executing Court has found that the decree having been already satisfied and delivery of property was also recorded and the EP was closed, the petitioner could not maintain the application under Section 50 of CPC.

4.The learned counsel for the petitioner would further submit that the decree holder cannot be driven to another round of litigation by instituting a fresh suit against the legal representatives of the deceased judgment debtor, who claim under the judgment debtor, who has highhandedly trespassed into the property subsequent to having been dispossessed in the execution petition filed by the petitioner. He would place reliance on the decision of this Court in V.G.Naidu @ Govindasamy Naidu Vs. Pahlajraj Gangaram @ Pahlaj Rai , reported in 2016 SCC Online Mad 9710, where this Court held that the executing court would not become functus officio and the fact that possession had been delivered and the terminated EP will not operate as constructive res judicata to deny the landlord from recovering possession of the property from the tenant and that it was not necessary for the subsequent purchaser, that is the subsequent landlord to file a fresh suit for recovery of possession.

5.The Hon'ble Supreme Court in Pasupuleti Venkateswaralu Vs. the Motor & General Traders, reported in (1975) 1 SCC 770, held that the right of the party has to be made meaningful and the court can take into account cautious cognizance of events and developments subsequent to the institution of the proceeding, provided the rules of fairness to both sides are scrupulously obeyed. The revision petitioner only sought to implead the legal representatives of the deceased judgment debtor in order to recover possession of the property that has been trespassed into by the deceased judgment debtor, under whom the legal representatives are claiming. Therefore, there is no denial of any fair opportunity to the respondents, that is the legal representatives of the judgment debtor as well.

6.The Executing Court erroneously held that the application under Section 50 cannot be maintained in view of the fact that the E