The petitioner/respondent/defendant has preferred this civil revision petition as against the order dated 05.08.2009 in E.A.28 of 2008 in E.P.No.9 of 2005 in O.S.No.95 of 2004 passed by the Learned District Judge of the Nilgris at Udhagamandalam.
2. The Learned District Judge of the Nilgris while passing orders in E.A.No.28 of 2008 has come to the conclusion that in the final decree application the revision petitioner/defendant has filed the counter through the very same trial Court Advocate admitting the claim of the respondent/decree holder and resultantly dismissing the application with costs.
3. The learned counsel for the revision petitioner/defendant urges before this Court that based on the memo filed by the revision petitioner/defendant counsel a preliminary decree has been passed in the main suit as early as on 04.06.2003 and letter on 03.12.2004 a final decree has been passed and the core contention put forward on the side of the revision petitioner before this Court is that, without instructions of the petitioner/defendant his counsel has filed the memo before the trial Court and therefore, the preliminary decree passed by the trial Court on 04.06.2003 in the main suit is null and void.
4. In response, the learned counsel for the respondents/decree holder submits that in the final decree application the petitioner/defendant has filed a counter and has only prayed for time and it is the proposition of Law that an Executing Court cannot go behind the tenor of decree in the considered opinion of this Court and in the present case, preliminary decree has been passed on 04.06.2003 and later final decree has been passed on 03.12.2004 and E.A.No.28 of 2008 filed under Section 47 of the Civil Procedure Code has been projected nearly after a gap of four years and therefore, the execution application has been rightly dismissed by the trial Court which requires no interference in revision.
5. It is to be noted that an Executing Court cannot go beyond the decree under execution and if at all the petitioner has any remedy in Law then, he has to challenge the preliminary/final decree in the manner known to Law and in accordance with Law. When the fact situation is that the preliminary decree dated 04.06.2003 and later the final decree dated 03.12.2004 passed in the O.S.No.41 of 2007 have become final it is for the respondent/decree holder to enjoy the fruits of decree. Inasmuch as the litigation cannot be allowed to go eternally and in that view of the matter the civil revision petition fails and the order passed by the Execution Court in E.A.No.28 of 2008 does not require any interference at the hands of this Court sitting in this revision.
6. In fine, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The order passed by the Executing Court in E.A.No.28 of 2008 in E.P.No.9 of 2005 in O.S.No.95 of 2004 is affirmed by this Court for the reasons assigned in this revision. Considering the facts and circumstances of the case the parties are directed to bear their own costs in this revision. Consequently, related M.P. No.1 of 2009 is closed.
prm To The District Judge of the Nilgris, Udhagamandalam