The petitioner/decree holder/plaintiff has filed this civil revision petition as against the Order dated 05.06.2009 in R.E.P.No.17 of 2008 in O.S.No.10 of 2007 passed by the Learned Sub-Judge, Hosur in dismissing the application filed by the revision petitioner under Order 21 Rule 11 of Civil Procedure Code.
2. The Executing Court, while passing orders in R.E.P.No.17 of 2008, has inter alia opined that in regard to the petition mentioned property in E.P.No.17 of 2008 there is a suit namely O.S.No.9 of 2006 is pending before it and further, it has also observed that as to why O.S.No.9 of 2006 and O.S.No.10 of 2007 have not been conducted jointly for trial and if the Execution Petition No.17 of 2008 is allowed, then the plaintiff in O.S.No.9 of 2006 will face hardship and loss in regard to take possession of the property in question and if any order is passed in E.P.No.17 of 2008 prior to the passing of a full fledged decree in O.S.No.9 of 2006, there is a possibility of hardship being caused to both the parties and therefore, the prima-facie case and balance of convenience is not in favour of the revision petitioner/decree holder and resultantly, dismissed the said petition without costs.
3. The learned counsel for the revision petitioner/decree holder urges before this Court that the Executing Court has committed an error in dismissing the E.P.No.17 of 2008 on its file, filed under Order 21 Rule 11 of Civil Procedure Code when admittedly the decree passed in O.S.No.10 of 2007 has become final and conclusive and in fact the Executing Court cannot go behind the tenor of decree. Added further, an Executing Court cannot traverse behind the decree passed in O.S.No.10 of 2007 and it cannot pass any observation or verdict in regard to the fact of other pending suit in O.S.No.9 of 2006 on its file which is pending between the third party and the judgment debtor and these aspects of the matter have not been appreciated by the Executing Court in a proper perspective which needs to be set at right by this Court sitting in revision and therefore prays for allowing this civil revision petition to prevent an aberration of justice.
4. It is not in dispute that in O.S.No.10 of 2007 a decree has been passed by the trial Court as early as on 05.06.2007. As against the said judgment and decree passed by the trial Court, no further proceedings appears to have been taken and ultimately, the said judgment and decree passed in O..No.10 of 2007 have become final and it is binding between the inter se parties. As a matter of fact, the purported reference to suit in O.S.No.9 of 2006 made by the Executing Court in its order in E.P.No.17 of 2008 relates to the pending proceedings between the third party and the judgment debtor about which the revision petitioner/plaintiff in O.S.No.10 of 2007 has no concern whatsoever in the eye of law.
5. It is a well settled preposition of law that an Executing Court cannot traverse beyond the decree and in short, it has to scrupulously follow the tenor of the decree in law, in the considered opinion of this Court. After carefully perusing the orders of the Executing Court passed in R.E.P.No.17 of 2008 dated 05.06.2009, this Court is of the considered view that the Executing Court has indulged in surmises, suppositions, assumptions and presumptions which are not germane in regard to the determination of the point and issue and ultimately it has resulted in an issuance of an erroneous order being passed against the revision petitioner/decree holder which needs to be set at right by this Court sitting in revision and accordingly in the interest of justice, this Court interferes with the order passed in R.E.P.No.17 of 2008 and resultantly, allows the civil revision petition.
6. In fine, the civil revision petition is allowed, leaving the parties to bear their own costs. The order passed by the Executing Court in R.E.P.No.17 of 2008 dated 05.06.2009 is set aside. The Executing Court is directed to restore E.P.No.17 of 2008 to its file and after providing due opportunities to parties, is to pass fresh orders on merits within a period of 2 months from the date of receipt of the copy of this order. Having regard to the facts and circumstances of the case the parties are directed to bear their own costs in this revision. Consequently, connected M.P.No.1 of 2009 is closed.
prm To The Subordinate Judge, Hosur