The petitioner/decree holder/plaintiff has filed this civil revision petition as against the order dated 29.06.2009 in E.A.No.971 of 2009 in E.P.No.1889 of 2008 in O.S.No.536 of 1993 passed by the learned IX Assistant Judge, City Civil Court, Chennai in dismissing the application filed by the revision petitioner under Order 1 Rule 10 of Civil Procedure Code praying to implead the son viz., second respondent and the third respondent being a tenant of second respondent.
2.To avoid an avoidable delay, this Court dispenses with the issuance of notice to the respondents in the interest of justice.
3.The Executing Court, while passing orders in E.A.No.971 of 2009 dated 29.06.2009, has, inter alia, come to the conclusion that '... But, in the execution court, unless and until the third party obstructing the execution is made out, the necessary party cannot be made etc. and the petition for impleading the parties 2nd and 3rd respondents is without any justification and resultantly, dismissed the application without costs.'
4.The learned counsel for the revision petitioner/ plaintiff/decree holder submits that the first respondent/ first defendant (father) has sold the property to second respondent viz., his son on 30.06.1996 by virtue of sale deed dated 30.06.1996 registered at Sub Registrar Office, Velacherry, Chennai and that the revision petitioner has come to know of the said sale only after the filing of the second EP viz., E.P.No.1889 of 2008 and in order to have effective possession from the first respondent/first defendant, it is just and necessary that E.A.No.971 of 2009 viz., the impleading application has to be allowed and further that respondents 2 and 3 are to be impleaded as necessary parties to the execution proceedings and if they are not impleaded, then the revision petitioner will not be in a position to recur possession of the property from them and as a matter of fact, these aspects of the matter have not been appreciated by the Executing Court in a real perspective which has resulted in an erroneous impugned order being passed against the revision petitioner/ plaintiff and therefore, prays for allowing the civil revision petition.
5.In support of the contention that the revision petitioner/plaintiff is entitled to file an execution petition for every recurring infringement as long as the application has been filed within time and that a plaintiff cannot be driven for a second suit, the learned counsel for the revision petitioner/plaintiff cites the decision of this Court Kanakamma V. Kamalan 2000 (II) CTC 240 wherein it is inter alia held that 'plaintiff is entitled to file execution application for every recurring infringement as long as application was filed within time and that the plaintiff cannot be driven for second suit and that the order of executing Court is set aside and the matter is remanded."
6.It is to be noted that in the affidavit in E.A.No.971 of 2009, the revision petitioner/decree holder has stated that she has learnt from the encumbrance certificate dated 22.8.97 that her property has been wrongfully sold by the first respondent/first defendant to his own son Senthilkumar by means of a registered Document No.2115 of 1996 and that she has obtained a decree for permanent injunction in the suit on 28.8.1997 and as a matter of fact, the first respondent/first defendant has sold the revision petitioner/ decree holder's property wrongfully to his own son the second respondent to grab the property and in turn the second respondent had let out the said property to third respondent and therefore, on the basis of equity, fair play and good conscience, respondents 2 and 3 will have to be arrayed as necessary parties in execution proceedings.
7.Expatiating his arguments, the learned counsel for the revision petitioner/decree holder submits that the proper/necessary party can be added at any stage of the proceedings by a Court of Law and in order to do the complete and comprehensive justice, the respondents 2 and 3 are to be added as necessary parties in the execution proceedings and there is no impediment for a Court of Law to allow the E.A.No.971 of 2009.
8.It is true that the term 'at any stage of the proceedings' is by itself very clear and the power to strike out or at parties may be exercised by a Court of Law at any stage of the proceedings even before the issues in the suit and frame. But in the present case, the matter is pending at the execution stage and one cannot ignore an important fact that earlier the revision petitioner/decree holder has filed E.P.No.947 of 2002 and the same has been dismissed for default on the side of the revision petitioner on 27.3.2003. No endeavour, admittedly, has been made to restore the said E.P.No.947 of 2002. However, the revision petitioner/decree holder has chosen to file another E.P.No.1889 of 2008.
9.On a careful consideration of the arguments advanced on behalf of the revision petitioner/decree holder, this Court is of the considered view that before ever a party obstructing an execution is made out a necessary party or a proper party in the eye of law cannot be added and in fact, the revision petitioner can take steps to implead the respondents 2 and 3 when an order is passed by the Executing Court in E.P. about the obstruction made by them and only after the obstruction is made by respondents 2 and 3 the revision petitioner/decree holder has a cause of action to project necessary application in the manner known to law in regard to the removal of said obstruction caused by the respondents 2 and 3 and in that view of the matter, this Court disposes of the civil revision petition granting liberty to the revision petitioner/decree holder to project a necessary application before the Executing Court in the manner known to law and in accordance with law when it is brought to the notice of the Court or when the Court has come to know that respondents 2 and 3 are in fact the real obstructors on the basis of Bailiff's report who are to be removed from the petition mentioned property.
10.With these directions, the Civil Revision Petition is disposed of. Liberty is granted to the revision petitioner/decree holder/plaintiff to array the respondents 2 and 3 as necessary parties in E.P. only when the Executing Court comes to to know that respondents 2 and 3 are the obstructors in the property who are necessarily to be removed from the Execution Petition mentioned property in the manner known to law. Further, the revision petitioner is directed to file necessary application immediately within a week from the date when the Executing Court passes an order in Execution Petition in regard to the obstruction made by the respondents 2 and 3 in the petition mentioned property after receiving or obtaining a report from the bailiff in this regard. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
sgl To The IX Assistant Judge, City Civil Court, Chennai