This Civil Revision Petition is filed by the defendants against the order dated 30.6.2008 passed in EP.No.30/2003 in OS.No.337/1997 by the learned District Munsif cum Judicial Magistrate, Bodinayakanur.
2. The respondents have filed a suit in OS.No.1180/1973 before the District Munsif, Periakulam for partition of family properties through their mother/guardian as they were minors while filing the suit. The said suit was dismissed, as against which the respondents filed an appeal in AS.No.36/1989 and the same was allowed and a preliminary decree was passed on 26.8.1977 granting 3/4th share in items (2) to (8) of the suit properties. Thereafter final decree had also been passed on 16.9.1989.
3. The father of the petitioners by name Veerathevar had purchased an extent of 2 acres 53 cents of nanja land in S.No.105/2A in Bodinayakanur Village under a registered sale deed dated 2.7.1982, which also form part of the partition suit. The said Veerathevar had filed an appeal in AS.NO.36/1989 before the Sub Court, Periyakulam and the same was allowed and the decree dated 12.12.1991 was passed on the basis of the joint memo dated 19.10.1990 recorded on 22.10.1990. As per the decree dated 12.12.1991 passed based on the joint memo, out of 2 acres 53 cents in S.NO.105/2A, 1 acre 23 cents of nanja land on the western portion was allotted to the said Veerathevar in lieu of 2 acres 53 cents and the remaining was to be allotted in some other survey number. After the death of Veerathevar, the petitioners, who are the legal heirs, had been impleaded as legal heirs of the said Veerathevar as respondents 9 to 11 in the final decree.
4. According to the petitioners, the said Veerathevar had entered into a tenancy agreement with his cousin namely Ponndoss way back in the year 1983 and the tenancy was recorded in TR.No.57/1983 before the Recording Officer and Tahsildar, Uthamapalayam. It is stated that the tenants are in possession. In the mean while, the respondents have filed the execution petition in EP.No.30/2003 in the court of District Munsif Cum Judicial Magistrate, Bodinayakanur for delivery of the property pursuant to the final decree passed.
5. The execution petition has been resisted by the petitioners on the ground that they have been allotted 1 acre 23 cents in S.No.105/2A and the remaining extent of 1 acre 30 cents of land is yet to be allotted in some other survey number and without allotting the remaining 1 acre 30 cents, the petitioners cannot be evicted from the land. It is also contended that the respondents having not filed a certified copy of the preliminary decree in the EP proceedings, they are not entitled for delivery of possession. In the joint memo, the father of the petitioners had agreed to take 1 acre 23 cents on the western side in S.No.105/2A and had also agreed to take the remaining land in some other survey number as decided by the court. Only based on the joint memo the final decree had come to have been passed.
6. The final decree had been passed in the year 1991 and now the petitioners cannot contend that without allotting the remaining land in some other survey number, the delivery cannot be effected. It is now brought to the notice of this court that delivery had been effected in accordance with the final decree passed.
7. In determining an application under Order 21 Rule 35 of CPC, the executing court has only to examine as to whether the decree holder is entitled under the decree to the possession of the property. If they are found to be so entitled, the executing court cannot decline to issue warrant of delivery. Merely on the statement of the petitioners that some third person is in possession as a tenant, it cannot stand in the way of the decree holder in executing the decree in any manner he wishes. The executing court at the stage of Order 21 Rule 35 of CPC cannot look into the stranger's claim as to possession of the property. The third party may resist the delivery and thereafter justify it, but on the said ground the order of delivery cannot be objected to by the petitioners. In this case, as delivery had been effected, nothing survives to be decided in this Civil Revision Petition.
8. It is pertinent to point regarding the other contention raised by the learned counsel for the petitioners that production of a certified copy of the preliminary decree is necessary in the execution proceedings and without the copy of the preliminary decree being produced the execution of the decree cannot be effected and relied on the Rule 140 of the Civil Rules of Practice. It is held by this court that civil rules of practice is only directory and not mandatory and it cannot override the Code of Civil Procedure, placing reliance on the decisions of the Allahabad High Court rendered in the cases of Farook Vs. District Judge, Lucknow [AIR-1984-Allahabad-39] which has been confirmed by the Honourable Supreme Court in the case of W.B.Essential Commodities Supply Corporation Vs. Swadesh Agro Arming and Storage Pvt Limited and another [1999-8- SCC-315]. Therefore, both the the contentions of the learned counsel for the petitioners merits no acceptance. In the said view of the matter, there is no escape from the conclusion that the respondents must be put in possession of the land, which was allotted to them in the final decree in the year 1991, which has become final as no higher court has upset the said decree.
9. In view of the aforesaid reasons, the order of delivery passed by the executing court is perfectly justified and I do not find any illegality or infirmity to interfere with the impugned order passed by the court below.
10. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The District Munsif cum Judicial Magistrate, Bodinayakanur