Allowed

M.Vaikundaraman v. H.Sithiraivelu

Madras HC20 Sept 2019CRP(MD)/311/2009

Case brief

AI extract

What is this about?

The Madras High Court allowed a civil revision petition against an execution order. The High Court expunged an observation by the executing court regarding the plaintiffs duty to prove property title, holding it exceeded the scope of execution proceedings as such issues are for the forum hearing a set aside petition.

What did the court decide?

The specific observation in the impugned order dated 30.01.2009 requiring petitioners to establish property title was expunged.

M.Vaikundaraman Vs H.Sithiraivelu — Execution and Attachment | Madras HC (2019)

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C.R.P(MD)No.311 of 2009

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.09.2019 CORAM

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THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

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C.R.P(MD)No.311 of 2009

1.M.Vaikundaraman

2.M.Ramar

3.M.Easwaran

... Petitioners/

Petitioners/Plaintiffs

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Vs.

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1.H.Sithiraivelu

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2.C.Rajagopal

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3.C.Maharajan

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4.C.Murugan

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... Respondents/ Respondents/Defendants

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Prayer : Petition filed under Section 115 of the Code of Civil Procedure against the order dated 30.01.2009 passed in E.P.No.67 of 2006 in O.S.No.156 of 1999 by the learned District Munsif, Srivaikuntam.

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For Petitioner : Mr.G.Prabhu Rajadurai For Respondents : Mr.M.P.Senthil for R.1 & R.2 No appearance for R.3 & R.4

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ORDER

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This Civil Revision Petition has been filed challenging the order dated 30.01.2009 passed in E.P.No.67 of 2006 in O.S.No.156 of 1999 by the learned District Munsif, Srivaikuntam.

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The petitioners are the plaintiffs and the respondents are the defendants. The petitioners/plaintiffs filed the suit in O.S.No.156 of 1999 on the file of the learned District Munsif, Srivaikuntam, for permanent injunction. The respondents/defendants remained exparte before the trial Court. The trial Court, vide judgment and decree dated 05.07.1999, decreed the suit as prayed for. Pursuant to the exparte decree, E.P.No.67 of 2006 has been filed by the petitioners/plaintiffs. The Executing Court, vide order dated 30.01.2009, while dismissing E.P.No.67 of 2006, observed that it is the duty of the petitioners/plaintiffs to establish that the property in question belongs to them and that the petitioners herein/plaintiffs have not produced any document to establish the same. Challenging the same, the present Civil Revision Petition has been filed.

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https://hcservices.ecourts.gov.in/hcservices/

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1/2

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C.R.P(MD)No.311 of 2009

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Heard both sides and perused the materials available on

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record.

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Even though the grievance of the respondents/defendants is that it is an exparte decree and they would be entitled to restore the suit on file to get a finding on merits, the contention of the petitioners/plaintiffs is that the observation in the Execution Petition that it is the duty of the petitioners/plaintiffs to establish that the property in question belongs to them and that the petitioners herein/plaintiffs have not produced any document to establish the same, have got to be eschewed.

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It is also brought to the knowledge of this Court that during the pendency of this Civil Revision Petition, the respondents herein/defendants had demolished the violated portion.

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This Court is of the view that in Execution Petition, this observation is not at all required as the Court is going to execute the judgment and decree passed by the appropriate Court and in case of any set aside petition/restoration petition filed by the appropriate parties, it is for the lower Court to decide the issue once the suit is restored on file and in the present case on hand, the Execution Court has gone beyond the scope of the judgment and decree and hence, the observation that " It is the duty cast upon the petitioners/plaintiffs to establish the case and that they have not produced any document to prove the same " may not be relevant and therefore, the said observation is expunged from the order dated 30.01.2009 passed in E.P.No.67 of 2006 in O.S.No.156 of 1999. It is open to the respondents/defendants to proceed with the issue independently and establish their case before the appropriate forum.

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Accordingly, this Civil Revision Petition is disposed of as above. No costs.

Sd/-

Assistant Registrar

/TRUE COPY/

Sub Assistant Registrar

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The District Munsif Court, Srivaikuntam.

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+1 CC to M/s.G. PRABHU RAJADURAI, Advocate ( SR-88766[F] dated 24/09/2019 )

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C.R.P(MD)No.311 of 2009 20.09.2019

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rsb

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JM/04.10.2019/2P/3C

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https://hcservices.ecourts.gov.in/hcservices/

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M.Vaikundaraman v. H.Sithiraivelu

Case brief

What is this about?

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M.Vaikundaraman v. H.Sithiraivelu

Case brief

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