Madras High Court
Muthammal vs Krishnan on 22 November, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
C.R.P. (NPD) No.3783 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2019
CORAM:
THE HON'BLE Mr. JUSTICE R.PONGIAPPAN
Civil Revision Petition (NPD) No.3783 of 2019
and CMP No.24799 of 2019
1. Muthammal
2. Munirathinam
3. Mani
4. Rajammal .. Petitioners
Vs
1. Krishnan
2. Raja .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the Office Note in Un-numbered R.E.A.No.---of 2018 in REA
No.59 of 2018 in EP No.41 of 2017 in O.S.No.67 of 2015, on the file of the
Court of the District Munsif, Palacode.
For Petitioners : Mr.M.V.Krishnan
ORDER
The petitioners are the 3rd party in Unnumbered REA ---of 2018 in REA No.59 of 2018 in EP No.41 of 2017 in OS No.67 of 2015, on the file of the Court of the District Munsif, Palacode.
2. Before the trial Court, 1st respondent in the Civil Revision Petition, filed a suit in OS No.67 of 2015, as against the 2nd respondent, seeking the 1/6 http://www.judis.nic.in C.R.P. (NPD) No.3783 of 2019 relief of declaration, declaring the suit scheduled property as the absolute property of the 1st respondent /plaintiff. Further he prayed for the relief of recovery of possession from the 2nd respondent . The suit ended in his favour and thereafter, the defendant / 2nd respondent was directed to hand over the possession of the suit scheduled property to the plaintiff/1 st respondent, within a period of two months.
3. Based on the decree, an execution petition has been filed in EP No.41 of 2017, for the relief, of recovery of possession of the suit scheduled property from the defendant/2nd respondent. Only in the said occasion, the petitioners, being the third party submitted an application before the learned District Munsif, Palacode in REA No.59 of 2018 under Order IX Rule 4 of Code of Civil Procedure for the relief, to implead them as a party in EP No.41 of 2017. The said application filed by the revision petitioners has been dismissed on 25.10.2018, for the reason that the petitioners have not served the notice to the respondents. Aggrieved over the same, on 29.10.2018 the revision petitioners filed another one REA, to restore REA No.59 of 2018 in EP No.41 of 2017. The said application filed by the revision petitioners has not been assigned with case number by the Court below. However, the same was returned on 15.11.2018, stating as follows: 2/6
http://www.judis.nic.in C.R.P. (NPD) No.3783 of 2019 “Delivery effected on 14.11.2018.
Howe this petition is maintainable at this stage? Hence, return.
Time 1 month.”
4. Aggrieved over the said return the petitioners are before this Court with the present Civil Revision Petition, seeking to allow the Civil Revision Petition and to direct the learned District Munsif, Palacode, Krishnagiri District, to number the unnumbered REA --/2018 and restore REA No.59 of 2018 in EP No.41 of 2017 in O.S.No.67 of 2015.
5. Today, when the Civil Revision Petition came up for admission, the learned counsel appearing for the revision petitioners was present and made submission that the learned District Munsif, Palacode, without assigning any specific reason, refused to number the application filed by the revision petitioners and thereby, the order of this Court is necessary for numbering the application filed by the revision petitioners.
6. It is not in dispute that EP No.41 of 2017 was filed by the 1st respondent/plaintiff based on the decree passed in OS No.67 of 2015, which was filed for the relief of declaration and recovery of possession. It is the contention of the revision petitioners that the property under dispute was 3/6 http://www.judis.nic.in C.R.P. (NPD) No.3783 of 2019 purchased on 19.12.1972 by one Govindasamy, who is the father of the revision petitioners. It is the further contention of the revision petitioners that they are filed an application to implead them as party in REP No.41 of 2017.
7. Upon considering the arguments advanced by the learned counsel appearing for the revision petitioners, even assuming that the petitioners are having a right and title over the suit scheduled property, it is for them to file an application to implead them as a party to the proceedings in the suit filed by the 1st respondent/plaintiff in OS No. 67 of 2008. Instead of filing an application before the Court in which the suit was tried, they have filed the application in the proceedings initiated after passing the decree.
More than that, as of now, delivery of the suit scheduled property has been effected in favour of the 1st respondent/plaintiff and thereafter, the 1st respondent/plaintiff is in possession and enjoyment of the suit scheduled property. In the said circumstances, there is no opportunity for the revision petitioners to enter appearance in the execution proceedings. Therefore, it is unnecessary for the revision petitioners to file an application before the learned District Munsif, Palacode, for the relief stated supra. 4/6 http://www.judis.nic.in C.R.P. (NPD) No.3783 of 2019
8. During the course of arguments, the learned counsel appearing for the revision petitioners produced a copy of the sale deed, which stands in the name of one Govindasamy dated 19.12.1972. According to the revision petitioners, through the said sale deed, the suit scheduled property was purchased by their father. However, since the execution proceedings has already closed, the revision petitioners are not entitled to any relief by way of filing this Civil Revision Petition. However, it is open to the revision petitioners to initiate a separate suit, to prove their title, in the manner known to law.
9. In view of the above observation, the Civil Revision Petition is dismissed. No Costs. Consequently, the connected Civil Miscellaneous petition is closed.
22.11.2019 Speaking/Non-speaking order Index: Yes/No Internet: Yes ars To The II Additional Judge, City Civil Court, Chennai. 5/6 http://www.judis.nic.in C.R.P. (NPD) No.3783 of 2019 R.PONGIAPPAN, J., ars CRP (NPD) No.3783 of 2019 and CMP No.24799 of 2019 22.11.2019 6/6 http://www.judis.nic.in