The Petitioner is the second defendant in O.S.No.495 of 2009 and the respondent in E.P.No.24 of 2012 and E.A.No.8 of 2016. The first respondent filed a suit in O.S.No.495 of 2009 for removal of encroachment put up by the defendants in the Government Poramboke land which was used as a common path- way. The Petitioner and the second respondent entered appearance through Advocate, but did not contest the suit.
2.The third respondent/The District Collector, Kanyakumari District filed a written statement and submitted that the land in question is a Government Poramboke land and B-memo has been issued to the encroachers. Now, the Petitioner and second respondent are encroachers. The third respondent/The District Collector will remove the encroachment by following due process of law. The suit was decreed as prayed for. The petitioner filed A.S.SR.No.5708 of 2012 along with Petition in I.A.No.71 of 2012 to condone the delay in filing the appeal. The said application was allowed on payment of costs. The Petitioner did not comply with the said conditional order by paying the cost imposed by the learned Trial Judge. Therefore, the said application in I.A.No.71 of 2012 was dismissed on 13.02.2013. The first respondent filed E.P.No.24 of 2012 for removal of encroachment and the Petitioner and others prevented the Amin from executing the decree. The first respondent filed E.A.Nos.8,9 and 10 of 2016 in E.P.No.24 of 2012, to break- open, for police protection and dis-connection of electricity service connection. All the three applications were ordered by order dated 03.08.2016. Against the order passed in E.A.No.8 of 2016, the present Civil Revision Petition is filed.
3.The learned counsel for the Petitioner submitted that the property belongs to the Government and therefore the first respondent ought to have approached the third respondent to remove the encroachment and the execution petition filed by the first respondent is not maintainable. The learned Judge failed to see that the first respondent has no locus-standi to execute the ex-parte decree, as the property belongs to the Government. The learned Judge passed an order without issuing notice to the Petitioner and respondent No.2 and 3.
4.The learned counsel for the first respondent contended that the Petitioner has filed a Civil Revision Petition in C.R.P.No.801 of 2013 to review the order, made in I.A.No.71 of 2012, dated 13.02.2013.The first respondent filed a counter affidavit along with vacate stay petition and submitted that the Petitioner filed an application to condone the delay in filing the appeal against the decree passed in O.S.No.495 of 2009.The said application was ordered on payment of cost of Rs.1,000/-.The said conditional order was not complied with and therefore the said I.A was dismissed. The Petitioner filed C.R.P.No.801 of 2013 before this Court against the order of dismissal made in I.A.No.71 of 2012. This Court dismissed the above said C.R.P by order, dated 02.08.2013. The Petitioner and others obstructed the Amin of the Court from executing the warrant, by locking the house constructed in the encroached area. In the circumstances, the learned Judge allowed the application for police protection filed by the first respondent. The execution court cannot go beyond the decree passed in the suit and the execution court cannot decide the locus-standi of the first respondent to execute the decree obtained by him.
4.Heard the learned counsels appearing on either side and perused the materials placed before this Court.
5.Admittedly, the first respondent obtained a decree in O.S.No.495 of 2009.The said decree is not an ex-parte decree. The third respondent/The District Collector, Kanyakumari District filed a written statement and submitted that the suit property is a Government Poramboke land and on that day, the Petitioner and second respondent were in possession of encroached land and encroachment would be removed as per law.
6.The learned Judge considering the pleadings and arguments of the first respondent and third respondent, decreed the suit. It is pertinent to note that the Petitioner filed A.S.SR.No.5708 of 2012 with I.A.No.71 of 2012 to condone the delay in filing the appeal against the decree passed in the suit. A conditional order was passed, directing the Petitioner to pay a sum of Rs.1,000/-towards costs, for allowing the said application. The Petitioner failed to pay the costs as ordered by the Court below and hence, the said I.A.No.71 of 2012 was dismissed on 13.2.2013. In the circumstances, the first respondent is entitled to execute the decree dated 7.10.2010 passed in O.S.No.495 of 2009. The Petitioner filed an application under Section 47 of Civil Procedure code and the same was dismissed by the Execution Court. In the circumstances, the learned Judge has exercised his power conferred on him in a proper perspective. There is no illegality or irregularity in the order of the Court below to interfere with the same and thus, the revision fails.
7.Accordingly, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petitions are dismissed. No costs.
To
1.The District Munsif, Nagercoil, Kanyakumari District.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai..