P.V. UMMANNI, W/O. LATE P.B. VITTAL, SRI. P.V. CHANGAPPA AND SRI. P.B. SOMANNA Vs. S.L.N. SATHAPPA CHETTIAR, (DEAD) BY HIS LRS., N.S. VELLIAPPAN, N.S. VISHWANATHAN, P.B. SHEKAR, S/O. P.J.BELLIAPPA AND T.T. PRABHU, S/O. T.S. THIMRNAIAH

JUDGEMENT

(1.) THIS revision under section 115 of CPC is directed against the order dated 4th March 2011 on IA.No. XI filed by the Judgment Debtor under Section 151 of CPC. Heard learned counsel on both sides.

(2.) THE contextual facts are, one S.L.N.Sathappa Chettiar had filed a suit against P.B.Vittal and others for a decree of possession of property described in the schedule to the plaint. In support there of, it was averred that by a registered deed of sale dated 30.3.1957, he had purchased the property bearing Sy.No. 82 out of 68.43 acres situate at Halery Makkandur village, Mercara Nad, Coorg District. By a registered deed of sale dated 28.1.1958 he sold 25 acres of land from out of the said land to one Jameela Banu and another. Consequent to the sale, Sy.No. 82 was split into two survey numbers and it was assigned Sy.No. 82/1 comprising 41.33 acres and Sy.No. 82/3 comprising 2 Acres 10 guntas. Both were in possession of the plaintiff, while Sy.No. 82/2 was sold of Jameela Banu. Jameela Banu sold 25 acres of land in Sy.No. 82/2 to defendant No. 4 and put her into possession. It was later bifurcated in the revenue records giving Sy.No. 82/2 of 18.60 acres and 82/4 of 6.40 acres. Sy.No. 82/1 comprises of 22.44 acres which remains in the possession of the plaintiff along with other properties. 14 acres out: of the said land is situate beyond the stream on the eastern portion of the land bearing 82/2 measuring 18.60 acres and 82/4 measuring 6.40 acres.

(3.) THE Decree was put in execution before the Trial Court. The judgment debtor resisted issuance of delivery warrant creating doubt about the identity of the property. The Executing Court by its order dated 15.4.2000 held that identity of the schedule property was not established and dismissed the Execution petition. Against which, the legal heirs of Decree Holder were in revision before this Court in CRP No. 2937/2000. This Court considering the contentions of both sides negated all objections against execution of decree with the following observations: It is clear from the perusal of the order passed by the Executing Court that the Executing Court has exceeded its jurisdiction in considering the question as to whether the there is dispute regarding identity of the property. It is clear from the perusal to the schedule mentioned in the Execution Petition as also the that the suit schedule property is described as follows: Land bearing Sy.No. 82/1 of 16.75 acres bounded on the east by Sy.Nos. 123, 125 and126; West by Village boundaries, North by Sy.No. 82/2 and South by village boundary. The description of the property in the schedule to the plaint is also the same. Further, the contention of the judgment debtors is that they are in possession of 11 acres and not 16.75 acres and they are the owners in respect of 25 acres of land in the property comprised in Sy.No. 82/1. This Court in RSA No. 943/1994 dated 15/04/1998 has observed that even if the defendants claim to be bonafide purchasers for value, no body can convey more than what he himself has to the purchasers and if their claim of bonafide purchaser as well as the claim for good faith can be confined only to 25 acres and not more. Wherefore, if the defendants are put in possession of land in excess of 25 acres in Sy. No. 82/1, the decree holders would be entitled to the possession of the same as per the decree and wherefore it is not within the jurisdiction of the Executing Court now to say that the decree cannot: be executed having regard to the above said material on record. Wherefore, the order passed by the Executing Court, is without jurisdiction and the same is liable to be set aside. It is submitted by the learned counsel appearing for the respondents -judgment debtors that they have put up construction of their house and are staying in the Coffee estate and they are ready to give up possession of 16.75 acres In 82/1. The suit of the decree holders was for possession of the coffee estate measuring 16.75 acres and therefore this is a matter which requires consideration by the Executing Court having regard to the equities and also having regard to the fact that the suit was for possession of 16.75 acres of Coffee estate, if, such proposal is made before the Executing Court, the same shall be considered by the Executing Court before proceeding further in the Execution Petition. The learned counsel appearing for the petitioners -decree holders also submits that they are ready and willing to sell the schedule property at market price. The parties are at liberty to make such proposal before the Executing Court which shall be considered in the first instance before proceeding further. The said contentions are kept open