The civil revision petition has been preferred against the fair and decreetal orders, dated 31.01.2017, made in E.A.No.71 of 2016 in E.P.No.21 of 2010 in O.S.No.373 of 2008, on the file of the Principal District Munsif Court, Valliyoor, Tirunelveli District.
2. It is found that the respondent / plaintiff has levied the suit, in O.S.No.373 of 2008, against the petitioners / defendants for recovery of possession of the suit property. It is further found that the petitioners / defendants did not put forth any resistance to the above said suit laid by the respondent / plaintiff and accordingly, the suit laid by the respondent / plaintiff culminated in a decree as prayed for. Putting the decree in execution for the purpose of recovery of the property concerned, it is found that the respondent / plaintiff has levied the execution proceedings in E.P.No.21 of 2010.
3. It is also found that the petitioners / defendants, who had taken steps to set aside the ex parte decree passed against them, did not succeed in their attempt and the civil miscellaneous appeal preferred by them, with reference to the same, had also come to be dismissed. This fact also had not been controverted by the petitioners / defendants. It is, therefore, seen that to the plaint averments raised by the respondent / plaintiff in the suit, no issue had been raised by the petitioners / defendants contesting the same.
4. While the execution petition initiated by the respondent / plaintiff to obtain the delivery of possession of the property concerned was pending, it is found that the petitioners / defendants have preferred an application, in E.A.No.71 of 2016, under Section 47 of the Code of Civil Procedure whereunder, the petitioners / defendants have taken a plea that the suit property has not been properly identified by the respondent / plaintiff in the suit and according to them, even as per the averments contained in the plaint, the suit property had been encroached upon by the State Government to a considerable extent and as against the said encroachment, the respondent / plaintiff had not taken any concrete action as per the law and the respondent / plaintiff had also not clearly identified the property for which, he seeks recovery in the suit and further, according to the petitioners / defendants in respect of their property, they had laid a suit, in O.S.No.240 of 2011, seeking for the relief of permanent injunction against the respondent / plaintiff and in the said suit, a Commissioner had been appointed and he had noted the physical features of the suit property and as per the report and plan of the Commissioner filed therein, it is stated that the portion of the respondent / plaintiff is only classified as the Government poromboke land and when the respondent / plaintiff has not clearly identified the property for which he had sought for possession and also not impleaded the Government as a party to the suit proceedings, the respondent / plaintiff is not entitled to lay any claim in the property of the petitioners / defendants under the guise of the decree obtained by him in his suit by giving incorrect boundaries and therefore, it is contended on their part that as disputes regarding the identity of the property are made out, the petitioners / defendants are necessitated to lay the application, under Section 47 C.P.C., on the ground that the decree obtained by the respondent / plaintiff has become inexecutable and hence, the execution petition is liable to be dismissed.
5. The respondent / plaintiff resisted the above said application preferred by the petitioners / defendants contending that the petitioners / defendants having failed to contest the case of the respondent / plaintiff in any manner and allowed the matter to go for ex parte and thereby the respondent / plaintiff having been granted a decree as prayed for, according to him, the petitioners / defendants are not entitled to throw any challenge to the decree as such and thus, according to him, the present application preferred by the petitioners / defendants, under Section 47 C.P.C., is not maintainable and the application also does not in any manner satisfy the ingredients adumbrated under Section 47 C.P.C., and the respondent / plaintiff has clearly identified the suit property by giving proper boundaries and the suit property measuring an extent of two cents covered in specific boundaries, there is no question of improper identity of the property concerned and the respondent / plaintiff has also pleaded the encroachment of the petitioners / defendants into the suit property in the suit itself and therefore, according to him, only with a view to delay the delivery of the property to the respondent / plaintiff as per the decree to which he is entitled to, the present application has been laid and hence, the application preferred by the petitioners / defendants is liable to be dismissed.
6. In support of the petitioners / defendants' case, P.W.1 has been examined and Exs.P1 to P5 have been marked and on the side of the respondent / plaintiff, no oral and documentary evidence has been adduced.
7. The Court below, on a consideration of the rival contentions put forth by the respective parties and also the materials placed, holding that the application laid by the petitioners / defendants, under Section 47 C.P.C., does not satisfy any of the ingredients contained therein as per the decisions of the Apex Court referred to in the impugned order and holding that the Executing Court cannot go beyond the decree and probe any claim of title or possession of the property and further holding that the petitioners / defendants having not questioned the lack of jurisdiction of the Court, which had passed the decree or impugned the decree passed in favour of the respondent / plaintiff as a nullity and the petitioners / defendants being parties to the suit proceedings not endeavouring to contest the suit by raising the question now put forth in the application and leaving the matter to go for ex parte, thereby culminating in a decree in favour of the respondent / plaintiff, cannot now impugn the decree by contending that the suit property has not been properly identified and so holding, held that the application preferred by the petitioners / defendants does not come under the purview of Section 47 C.P.C., and resultantly, dismissed the application. Impugning the same, the present civil revision petition has been preferred.
8. As rightly determined by the Court below, it is found that the Executing Court cannot go beyond the terms of the decree. It is found further that the petitioners / defendants have not questioned the legality of the decree passed in the suit laid by the respondent / plaintiff. It is further found that petitioners / defendants have not questioned the jurisdiction of the Court, which had passed the decree. In such view of the matter, when it is found that the suit had been laid by the respondent / plaintiff for delivery of possession of the suit property clearly mentioning its survey number, extent and also the specific boundaries within which it is located and also pleaded that the petitioners / defendants have encroached into the suit property and accordingly, sought for the recovery of possession of the suit property from the petitioners / defendants as per the decree passed in the suit, it is found that the petitioners / defendants, having not raised any question challenging the suit laid by the respondent / plaintiff before the Trial Court, cannot be allowed to contest the decree by filing an application putting forth the suit property is not properly identified under Section 47 C.P.C.
9. However, it is contended by the learned counsel for the petitioners / defendants that the dispute as regards the identity of the suit property would come under the purview of Section 47 C.P.C., and in this connection, strong reliance is placed by him upon the decision reported in AIR 2003 SC 643 [Pratibha Singh and another vs. Shanti Devi Prasad and another]. No doubt, in the above said decision, the Apex Court has also held that when the identification of the property is doubtful or suspicious, the same could also be adjudicated under Section 47 C.P.C., depending upon the facts and circumstances of each case.
10. In such view of the matter, it has to be seen whether the case of the petitioners / defendants that the suit property has not been properly described by the respondent / plaintiff in the suit is true and correct. As seen above, the respondent / plaintiff has clearly described suit property in the plaint mentioning its survey number, extent comprised therein and also the boundaries within which the same is located. Therefore, it is found that the description of the suit property has been properly and clearly given by the respondent / plaintiff. If really, according to the petitioners / defendants, the suit property has not been property described or identified as now put forth by them, when they are put on notice duly about the suit laid by the respondent / plaintiff, it is for them to take necessary steps as regards the same and contest the suit laid by the respondent / plaintiff. On the other hand, they have not endeavoured to show any resistance to the suit laid by the respondent / plaintiff. As rightly argued by the learned counsel for the respondent / plaintiff, particularly, when the petitioners / defendants have not found any discrepancy in the description of the suit property also, they have not put forth any objection to the suit laid by the respondent / plaintiff. In such view of the matter, when the respondent / plaintiff is attempting to put the decree in execution, the present case of the petitioners / defendants that the suit property had not been properly identified by the respondent / plaintiff as such cannot be readily accepted.
11. It is contended by the learned counsel for the petitioners / defendants that even as per the plaint averments, the Government had encroached into the suit property and when the respondent / plaintiff had not endeavoured to remove the alleged encroachment of the Government, the description of the suit property as such is not correct and further, in this connection, they also relied upon the Commissioner's report filed in O.S.No.240 of 2011, where there is a reference about the encroachment made in the suit property of the respondent / plaintiff and therefore, the identity of the property has not been properly given and hence, the decree obtained by the respondent / plaintiff has become inexecutable. However, it is found that the respondent / plaintiff had only sought for the delivery of the suit property pleading the encroachment made by the petitioners / defendants and when it is found that the extent of the suit property is only two cents within the specific boundaries, the reliance placed by the petitioners / defendants upon the Commissioner's report in O.S.No.240 of 2011, in my considered opinion, would not be sufficient to hold that the decree passed in O.S.No.373 of 2008 has become inexecutable. It is, thus, found that the present attempt of the petitioners / defendants to thwart the execution proceedings by way of the application laid by them under Section 47 C.P.C., is nothing but to delay the proceedings one way or the other. As rightly found by the Court below, none of the ingredients of Section 47 C.P.C., has been satisfied by the petitioners / defendants for maintaining the application. That apart, even the dispute as regards the identity of the property put forth by the petitioners / defendants is also found to be not established in a convincing manner and therefore, the contention now raised by the petitioners / defendants that the respondent / plaintiff under the guise of the decree is only attempting to usurp their property as such cannot be accepted without any basis. When it is the specific case of the respondent / plaintiff that during his absence the petitioners / defendants have encroached into the property belonging to him and accordingly, sought for the recovery of the property from the petitioners / defendants and when the petitioners / defendants have not resisted the above suit of the respondent / plaintiff, it is too late for the petitioners / defendants to contest the execution proceedings preferred by the respondent / plaintiff for obtaining the possession of the property concerned.
12. Not stopping there, it is also represented by the learned counsel for the respondent / plaintiff that considering the persistent attempt made by the petitioners / defendants to resist the delivery of the property to the respondent / plaintiff, it is stated that the respondent / plaintiff has made an application in the Executing Court to obtain the delivery of the property through Court Amin with the assistance of a qualified Surveyor and the said application has also not been resisted by the petitioners / defendants. It is, thus, found that the aim of the respondent / plaintiff is not to grab the property of the petitioners / defendants and accordingly, it is found that to show his bono fide, he has also moved an application before the Executing Court seeking necessary direction to the Amin to deliver the possession of the suit property to the respondent / plaintiff with the assistance of a qualified Surveyor so as to locate and identity the property concerned and accordingly, it is found that the respondent / plaintiff is only endeavouring to obtain the property to which he is entitled to and not to grab the property belonging to the petitioners / defendants. In such view of the matter, it is found that the present contention put forth by the petitioners / defendants that the identity of the property is not made out and hence, the decree obtained by the respondent / plaintiff has become inexecutable as such cannot be sustained in any manner.
13. In such view of the matter, it is found that the impugned order of the Court below does not call for any interference from this Court and accordingly, the fair and decreetal orders, dated 31.01.2017, made in E.A.No.71 of 2016 in E.P.No.21 of 2010 in O.S.No.373 of 2008, on the file of the Principal District Munsif Court, Valliyoor, Tirunelveli District, are confirmed. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected civil miscellaneous petition is closed.
To:
The Principal District Munsif, Valliyoor, Tirunelveli District.
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