Revision dismissed. Court held that defects in decree identity or boundary were not agitated at the first appeal stage. Re-construction of property after fire does not invalidate decree or allow execution-stage interference.
Three months time granted to petitioner to vacate and hand over vacant possession of the property.
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C.R.P.(NPD) No.3749 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2019
CORAM
THE HON'BLE MR.JUSTICE R. SURESH KUMAR
Civil Revision Petition No.3749 of 2019 & CMP No.24627 of 2019
John Jebaraj
John Jebaraj ... Petitioner
-Vs-
1.Sukeshini George
2.Sujaritha Rajkumar
3.Kulothungal Lazarus George
4.Thilak Kotnes George ... Respondents
Prayer : Civil Revision Petition under Section 115 of Civil Procedure Code against the fair and decreetal order dated 18.10.2019 passed in E.A.No.84 of 2017 in E.P.No.30/2012 in O.S.No.227/2003 pending on the file of the Principal District Munsif Court, Alandur.
For Petitioner : Mr.T.Eswara Dhas O R D E R
This revision has been filed against the fair and decreetal order dated 18.10.2019 passed in E.A.No.84 of 2017 in E.P.No.30/2012 in O.S.No.227/2003 pending on the file of the Principal District Munsif Court, Alandur.
2003, where the suit was laid for recovery of possession of the suit schedule property, which is a building / shed with thatched roof to the extent of 20 X 40 ie.,
800 Sq.ft at the land belonging to the plaintiffs / respondents / decree holders in
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C.R.P.(NPD) No.3749 of 2019
Pymash No.1119, Survey No.214/3, Madipakkam Village, Kanchipuram District.
for lease to the present revision petitioner / judgment debtor by the plaintiffs by a rental agreement dated 15.10.1993. Thereafter, the said building, which was a thatched shed went gutted because of a fire accident and thereafter on 06.11.2002, the revision petitioner / judgment debtor re-constructed the building and this factor has been admitted at paragraph No.10 of the amended plaint of the respondents / plaintiffs. When that being so, the decree passed against the revision petitioner in respect of the property mentioned above may be a wrong decree, as the said
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C.R.P.(NPD) No.3749 of 2019
building or shed, which was constructed originally and leased out to the revision petitioner was already gutted in fire and subsequently, on his own the revision petitioner / judgment debtor constructed the building and this aspect has not been considered by the execution court when that issue was raised in the petition filed under Section 47 of C.P.C., and hence the said order is erroneous and it is liable to
be interfered with.
the petitioner and have perused the materials placed on record.
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C.R.P.(NPD) No.3749 of 2019
impugned order, who stated that, when the trial Court decree having been confirmed by the first appellate Court, as against which admittedly there was no second appeal, the decree passed by the trial Court and confirmed by the first appellate Court cannot be said to be inexecutable and therefore, the said issue cannot be raised herein ie., in the execution proceedings by way of filing Section 47 application.
Court feels that, the impugned order is not liable to be interfered with. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
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C.R.P.(NPD) No.3749 of 2019
20-11-2019 KST To
The Principal District Munsif Court, Alandur.
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C.R.P.(NPD) No.3749 of 2019
R.SURESH KUMAR, J.
KST
C.R.P. (NPD) No.3749 of 2019
20.11.2019
Page 6 of 6
2 issues framed by the court
Whether a Civil Revision Petition can be allowed to raise a defect in the identity of property or boundary when the issue was not agitated before the first appellate court.
Whether an execution court raised under Section 47 CPC can be interfered with on the ground that the decree property was re-constructed by the judgment debtor after a fire.
2 provisions across 1 enactments
John Jebaraj
Sukeshini George
Sujaritha Rajkumar
Kulothungal Lazarus George
Thilak Kotnes George
R. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
