O R D E R

The above Civil Revision Petition has been filed, challenging the return of the application under Section 47 of the Code of Civil Procedure, filed by the revision petitioner/3rd party, without being numbered in E.P.No.49 of 2004 on the file of the District Munsif-cum-Judicial Magistrate Court, Arcot.

2.It is necessary to briefly touch upon certain facts, which precede the filing of this Civil Revision Petition. It appears that a suit in O.S.No.10 of 1991 has been filed by the respondents herein against the revision petitioner's father, one A.T.Dhayanandham and others, for partition on the file of the Subordinate Court, Ranipet (presently on the file of the Subordinate Court, Vellore, in O.S.No.130 of 1970). Ultimately, the suit was decreed and a preliminary decree was passed and thereafter, on 29.03.1993, a final decree had also come to be passed. The revision petitioner's father had participated in all the proceedings up to the final decree stage.

3.After passing of the final decree, the revision petitioner's father filed an appeal in A.S.No.71 of 1993 on the file of the Additional District Court, Vellore. The learned Additional District Judge had passed a judgment and decree dated 29.06.2001 in A.S.No.71 of 1993, which reads as follows.

“(iii) Appeal is allowed. The lower Court judgment is modified. The Eastern portion of Shop No.175 in Item No.1 shown as 'B' in Commissioner's plan is allotted to the plaintiff and the Western Portion (A) will go to the 8th defendant. Since both are adjacent owners, they shall bear their cost throughout.”

4.Therefore, by virtue of this decree, the plaintiff had become entitled to the eastern portion of the shop, bearing Door No.175 and the revision petitioner's father, viz., the 8th defendant had become entitled to the western portion. After the decree was passed, the same was sought to be executed, since, the revision petitioner's father had not handed over the vacant possession of the said portion.

5.Meanwhile, one of the defendants had challenged his decree in A.S.No.74 of 1993 by filing a Second Appeal in S.A.No.516 of 2003 and the same is pending herein, before this Court. In that appeal, the 8th defendant, viz., the revision petitioner's father is not a party to the proceedings.

6.Thereafter, the plaintiff had filed execution proceedings in E.P.No.379 of 2003 on the file of the Subordinate Court, Ranipet, which was subsequently renumbered as E.P.No.49 of 2004, for delivery of the eastern portion of Shop No.175, besides other reliefs. This execution petition was filed on 30.12.2003 and the 8th defendant was shown as 8th Judgment Debtor. On 11.06.2004, the 8th respondent/8th defendant was set exparte. It is seen that the possession has already been taken from the tenants in possession of the Shop No.175 on 13.11.2018 and the bailiff report in support of the same is also enclosed in the Typed Set of Papers.

7.Meanwhile, the revision petitioner, son of the 8th defendant, has taken up an application under Section 47 of the Code of Civil Procedure, contending that, he is the son of the 8th defendant, who had been set exparte and who died thereafter and that without bringing the legal representatives on record, the present delivery, that was executed, was per se illegal. Therefore, he would contend that the revision petitioner should be restituted back into possession.

8.Such an application under Section 47 of CPC has been filed by the revision petitioner on 03.10.2018, but, was returned on the same day by the Court below with an endorsement, calling upon the revision petitioner to state, as to how the application under Section 47 of CPC is maintainable, besides also observing that the 8th respondent/8th defendant, under whom the revision petitioner claims, was set exparte as early as on 11.06.2004 and break open was ordered much later, however, no steps have been taken, either to set aside the order or to implead the legal representatives of the

8th respondent/8th defendant.

9.The revision pe