Dismissed¶48

Varadharajan (Died) Neelavathi (Died) 1. Jayapal, v. Narayanasamy Naidu(Died) 1. Nathan

Madras HC18 Feb 2025CRP(MD)/868/2024

Case brief

AI extract

What is this about?

Execution delivery order upheld despite claimed discrepancy between decree extent (13 cents) and extent sought (16 cents); suit schedule described property by survey number, door number and four boundaries with no extent; judgment debtors barred from raising extent plea in execution as it was not raised at trial; CRP(NPD)(MD) 868/2024, Madras HC Madurai Bench, R.Vijayakumar J., dismissed 18.02.2025; Section 115 CPC; E.P.No.50 of 2013 in O.S.No.606 of 1986; prior CMA 4/2019 dismissed as not maintainable.

What did the court decide?

The trial Court decree identifies the property by survey number, door number, four boundaries and a rough sketch, and no extent is mentioned in the suit schedule property ¶44

Varadharajan (Died) Neelavathi (Died) 1. Jayapal, Vs Narayanasamy Naidu(Died) 1. Nathan — Madras HC (2025) — LawSathi Research

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C.R..P.(NPD)(MD).No.868 of 2024

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 18.02.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

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C.R.P(NPD)(MD)No.868 of 2024 and C.M.P(MD) No.4830 of 2024

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Varadharajan (Died) Neelavathi (Died)

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Jayapal

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Jayakumar

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Jayaseelan (died) ... Petitioners/Respondents/ Defendants

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Rajalakshmi

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Vijaysriram

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Vijaysrinath ... Proposed petitioners

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(Petitioners 4 to 6 are brought on record as LRs of the deceased 3^rd petitioner vide order of this Court dated 10.01.2025 made in C.M.P(MD) Nos. 18706 to 18708 of 2024 in C.R.P(MD) No.868 of 2024)

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Vs.

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Narayanasamy Naidu (Died)

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1/6

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.868 of 2024

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1. Nathan

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Rajagopal

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Baskaran

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Balagangadhara Thilagar

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Manikandan ... Respondents/Petitioners/ Plaintiffs

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PRAYER: Civil Revision Petition filed under Section 115 of Civil Procedure Code, against the fair and decreetal order dated 08.01.2019 by the learned Principal District Munsif, Kumbakonam, made in E.P.No.50 of 2013 in O.S.No.606 of 1986.

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For Petitioners : Mr.B.Anandan

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For Respondents : Mr.H.Laxmi Shankar

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O R D E R

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The judgment debtors in O.S.No.606 of 1986 on the file of the

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Principal District Munsif Court, Kumbakonam, are the revision petitioners herein.

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2. The respondents herein have filed the above said suit for the relief of

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permanent injunction or in the alternative for a mandatory injunction and

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2/6

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.868 of 2024

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recovery of possession. The suit was decreed for the relief of recovery of possession and for mandatory injunction. The said suit was dismissed with regard to the prayer of permanent injunction. Armed with the said decree, the decree holders have filed in E.P.No.50 of 2013 to take delivery of the property. The Execution Court has passed an order on 08.01.2019 directing the delivery of the property by 31.01.2019. Challenging the said delivery order, the present Civil Revision Petition has been filed.

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3. According to the learned counsel appearing for the revision petitioners, the suit has been decreed only for an extent of 13 cents. However, under the execution proceedings, the decree holders are attempting to take possession of 16 cents. Therefore, the order of delivery has to be set aside. This is the only ground raised in the present Civil Revision Petition.

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4. Per contra, the learned counsel appearing for the respondents/decree holders submits that the property that was shown as schedule of property in the suit has been shown in the execution petition also. Therefore, the judgment debtors cannot raise a plea that the property within the four boundaries is 16 cents and not 13 cents. Such a plea was not raised during

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https://www.mhc.tn.gov.in/judis

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3/6

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C.R..P.(NPD)(MD).No.868 of 2024

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trial. He further contended that the order of delivery was challenged in C.M.A.No.4 of 2019 before the Principal Sub Court, Kumbakonam, which was dismissed on 24.07.2023 on the ground that it is not maintainable.

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5. Heard both sides and perused the material on records.

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6. A perusal of the trial Court decree reveals that the plaintiffs have mentioned the survey number, door number, four boundaries and they have relied upon the rough sketch also. They have not mentioned any extent in the suit schedule property. The defendants having not raised any objection with regard to the extent of property within the said boundaries during trial. Therefore, they would not be entitled to raise the said plea in the execution proceedings. In fact, the description of the property is the same in the execution proceedings also. Therefore, such a ground is not legally sustainable and there are no merits in this Civil Revision Petition.

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https://www.mhc.tn.gov.in/judis

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C.R..P.(NPD)(MD).No.868 of 2024

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Accordingly, this Civil Revision Petition stands dismissed. There shall be no order as to costs. Consequently connected Miscellaneous Petition stands closed.

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18.02.2025

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NCC : Yes/No Index : Yes / No Internet : Yes / No ebsi

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1. The Principal District Munsif Court, Kumbakonam.

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