This Civil Revision petition has been filed to set aside the order of the learned Judge in returning the Execution Petition in R.E.P.Sr.No.6731 of 2016 in O.S.No.148 of 2011 on the file of Subordinate Judge's Court at Tiruchengode and direct the learned Subordinate Judge at Tiruchengode to number the same.
2. Heard Mr.T.L.Thirumalaisamy, learned counsel appearing for the petitioner and perused the materials available on record.
3. The learned counsel appearing for the petitioner would submit that the Decree Holders have made over the decree with respect to 24½ cents out of 74 cents viz., 12¼ cents by the decree holders 1 to 3 and another 12¼ cents by the decree holders 4 to 7, in favour of the petitioner. The aforesaid madeover of the decree was made by the Decree Holders/Respondents 1 to 7 herein under a document registered as Doc.No.4687 of 2016 dated 28.07.2016, on the file of Sub Registrar, Tiruchengode. As regards the decree holders/ respondents 1 to 7 herein, on the strength of the decree obtained by them, they have filed E.P.No.31 of 2016 and E.P.No.32 of 2016 to execute the decree insofar as it relates to the property in their ownership after excluding the 24½ cents of land madeover in favour of the petitioner. Therefore, the petitioner is entitled to file the present Execution Petition, with respect to 24½ cents of the suit property based on the deed of made over executed by the decree holders. The learned Subordinate Judge, Tiruchengode, without taking note of the valid deed of made over executed by the decree holders in favour of the petitioner, returned the Execution Petition on erroneous ground that the execution petition is not maintainable under Order XXI Rule 11 of CPC by the petitioner. Challenging the order of return, the present Civil Revision Petition is filed.
4. The learned counsel for the petitioner would further submit that the maintainability of the execution petition will be decided only after the numbering of the Execution Petition and even otherwise, when the petitioner has stated that with regard to 24 ½ cents out of 74 cents of the property decreed in favour of the decree holders, a valid made over has been made in favour of the petitioner, the learned Subordinate Judge ought to have numbered the Execution Petition and proceeded to decide the claim of the petitioner on merits, however, without doing so, the learned Subordinate Judge erred in returning the Execution Petition which calls for interference by this Court.
5. The petitioner filed the Execution Petition in R.E.P.Sr.No.6731 of 2016 under Order XXI Rule 11 of CPC, before the learned Subordinate Court, Tiruchengode, on the basis of the deed of made over executed by the decree holders/respondents 1 to 7 herein with respect to 24½ cents out of 74 cents of the suit property, which is the subject matter of the Suit. In such circumstances, the validity or otherwise of the claim made by the petitioner as regards the deed of made over executed in favour of the petitioner by the decree holders, has to be considered only after numbering the Execution Petition. Merely because the petitioner is not a party to the suit, the same will not disentitle the petitioner from filing the Execution Petition. Therefore in the interest of justice, this Court is inclined to pass the following order:
(1) The order dated 07.02.2017 passed in unnumbered R.E.P.Sr.No.6731 of 2016 in O.S.No.148 of 2011 is set aside and the matter is remanded back to the Subordinate Court, Tiruchengode with a direction to number the said Execution Petition.
(2) Thereafter, the Subordinate Court, Tiruchengode is directed to consider the said Execution Petition, including its maintainability, after affording opportunity to the petitioner as well as the judgment debtor/8th respondent herein.
6. With the above directions the Civil Revision Petition is allowed.
No Costs.
05.04.2017 Index:Yes/No Internet: Yes jv
Note: Registry is directed to return the Original REP Sr.6731 of 2016 along with the order of return passed by the learned Subordinate Judge, Thiruchengode to the learned counsel of the petitioner, after obtaining xerox copy of the same.
To The Subordinate Judge, Tiruchengode
D.KRISHNAKUMAR, J.,
jv CRP(NPD) No.1252 of 2017 05.04.2017 http://www.judis.nic.in