S.Periyamuniyandi v. S. Dharmalingam

ORDER The Civil Revision Petition is directed against the order passed in E.P.No.2 of 2020 in O.S.No.122 of 2010 dated 09.06.2023, on the file of the District Munsif Court, Madurai Taluk, Madurai.

¶2The respondents/decree holders/plaintiffs have filed the suit against the revision petitioners/judgment debtors/defendants in O.S.No. 122 of 2010, claiming permanent injunction restraining the revision petitioners/judgment debtors/defendants and their men from any manner trespassing, disturbing or interfering with the peaceful possession and enjoyment of the suit property. Subsequently, the plaint was amended and the relief of mandatory injunction came to be claimed directing the revision petitioners/judgment debtors/defendants to remove the constructions made in the suit pathway.

¶3It is not in dispute that the revision petitioners/judgment debtors/ defendants, after filing the written statement, have not chosen to participate in the trial and as such, they were set ex parte and after recording the respondents/decree holders/plaintiffs' side evidence and hearing the arguments made by the respondents/decree holders/plaintiffs' side, the learned District Munsif, Madurai Taluk, has passed a judgment and decree dated 18.11.2016 granting the reliefs of permanent injunction and mandatory injunction as prayed for. Since the decree was not complied, the first respondent/decree holder/second plaintiff has laid the execution petition in E.P.No.2 of 2020 to enforce the decree for mandatory injunction. The revision petitioners/judgment debtors/defendants have entered into appearance and filed their counter statement stating that the suit property was owned by them and was in their lawful possession, that they have not made any trespass, that the respondents/decree holders/ plaintiffs, by raising false pleadings in the plaint and by producing false evidence, have obtained the judgment and decree, that the revision petitioners/judgment debtors/defendants have already filed an appeal along with an application to condone the delay in filing the appeal in I.A.No.33 of 2021 and the same is pending and that the first respondent/ decree holder/second plaintiff, by suppressing the pending of the appeal and by suppressing the material facts, has filed the execution petition and as such, the same is legally not maintainable.

¶4The revision petitioners/judgment debtors/defendants have filed an additional counter statement raising additional defence that one of the decree holder Chinnapandi had died and the other decree holder has simply filed a Memo dated 21.03.2022 exonerating the deceased decree holder, that the first respondent/decree holder/second plaintiff has neither filed any proper application nor obtained any orders from the concerned Court, that the first respondent/decree holder/second plaintiff, in his execution petition by informing that there was no appeal challenging the judgment and decree which is sought to be executed and as such, is guilty of suppression, that the first respondent/decree holder/second plaintiff in the execution petition has not furnished the correct particulars of the encroachment allegedly made and that therefore, the execution petition itself is liable to be dismissed.

¶5The Executing Court, after enquiry, has passed the impugned order dated 09.06.2023 rejecting the objections raised by the revision petitioners/judgment debtors/defendants, has directed the removal of encroachment and for delivery of the property. Aggrieved by the impugned order, the judgment debtors have preferred the present revision.

¶6The learned counsel appearing for the revision petitioners/ judgment debtors/defendants would submit that the Court Amin has returned the delivery warrant for want of identification of the property and for that purpose, requires the help of a Surveyor and Village Administrative Officer (VAO) and that since the property was in locked condition, requires orders for break open and also for police help.

¶7The main contention of the revision petitioners/judgment debtors/ defendants is that the suit property shown in the decree is incorrect and there was no specific measurement in respect of the alleged encroachment in the property of the first respondent/decree holder/second plaintiff and that the Executing Court has failed to consider that statutory appeal is pending for adjudication.

¶8Regarding the contention of the incorrect description of property and want of specific measurement in respect of the alleged encroachment, as rightly pointed out by the learned counsel appearing for the respondents/decree holders/defendants, the learned trial Judge has specifically granted the relief of mandatory injunction with a specific direction and the same is extracted hereunder for better appreciation; "3. thjpfSf;F kl;Lk; jdpj;J ghj;jpa mDgtg;gl;l eilghij nrhj;jpy; ,e;j eph; gpujpthjpfs; fpoNkyb tlGwk; 1½ mb njd;Gwk; 2½ mbf;F Rkhh; 42 mb ePsKs;s nrhj;jpid Mf;fpukpg;G nra;J mjpy; Rkhh; 20 mb cau Rth; vOg;gpaPUg;gij gpujpthjpfs; jq;fsJ nrytpy; jPh;g;Giu Vw;gl;l xUkhj fhyj;jpy; mg;Gwg;gLj;j Ntz;Lk; vd;Wk; jtWk; gl;rj;jpy; ePjpkd;w mkPdh %yk; gpujpthjpfs; Mf;fpukpg;G nra;J cs;s nrhj;jpid ,bj;J mg;Gwg;gLj;j nraYWj;Jf; fl;lis cj;jpuT toq;fp cj;jputplg;gLfpwJ."

¶9The very contention of the revision petitioners/judgment debtors/ defendants that the description of the property shown in the decree is not correct and there are no specific measurement with regard to the alleged encroachment is absolutely devoid of substance and the same is liable for rejection.

¶10Regarding the pendency of the appeal, even according to the revision petitioners/judgment debtors/defendants, no appeal is pending as of now. The revision petitioners/judgment debtors/defendants have only alleged that they have filed an application to condone the delay in filing the appeal and the same is pending in I.A.No.33 of 2021. As rightly contended by the learned counsel appearing for the respondents/decree holders/plaintiffs, the suit was decreed on 18.11.2016 and even according to the revision petitioners/judgment debtors/defendants, they have preferred the appeal along with the delay condonation application in 2021 after the lapse of five years since the date of judgment and decree.

¶11The Executing Court has specifically observed that taking note of the time taken for filing the counter statement and for enquiry by the revision petitioners/judgment debtors/defendants, it is clearly evident that they have been dragging the matter intentionally and that they have not utilized the several opportunities granted to them in the interest of justice.

¶12Since the second respondent/decree holder/first plaintiff had died, the first respondent/decree holder/second plaintiff has filed a Memo exonerating him and the Executing Court has rightly recorded the same. Admittedly, the respondents/decree holders/plaintiffs are brothers and obtained the decree in their favour. Except the above, the revision petitioners/judgment debtors/defendants have not canvassed any other valid reason or objection to impugn the order under challenge.

¶13Considering the above, this Court concludes that the impugned order directing for removal of the encroachment and for delivering the property, cannot be found fault with. Consequently, this Court concludes that the revision is devoid of merit and the same is liable to be dismissed.

¶14In the result, this Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.

20.12.2023 NCC :yes/No Index :yes/No Internet:yes/No csm To

¶1The District Munsif Court, Madurai Taluk.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. K.MURALI SHANKAR

,J.

csm and C.M.P.(MD)No.14276 of 2023 Dated :20.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 29.11.2023 Pronounced on : 20.12.2023 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and C.M.P.(MD)No.14276 of 2023 1. S.Periyamuniyandi 2. P.Santha ... Petitioners Vs. 1. S.Dharmalingam 2. S.Chinnapandi ... Respondents Prayer : This Civil Revision Petition filed under Section 115 of the Civil Procedure Code, to pass an order allowing the civil revision petition by setting aside the impugned order passed in E.P.No.2 of 2020 in O.S.No. 122 of 2010 dated 09.06.2023 on the file of the District Munsif Court, Madurai Taluk. For Petitioners : Mr.M.Ponniah For Respondents : Mr.Sai.C.R.Janarthanan