DEVAMMA Vs. E.R. SUJATHA

JUDGEMENT

(1.) THE petitioners have filed Misc. No. 14131/2009 under Section 5 of the Limitation Act praying this Court to condone the delay of 3018 days caused in filing the review petition in the interest of justice and equity. The said application is supported by the affidavit of petitioner No. 2.

(2.) IN the affidavit filed by petitioner No. 2 in support of the application Misc. No. 14131/2009, he has stated that he knows the facts of the case and hence, he is swearing the affidavit. Since 40 years, himself and his mother are in possession of the suit schedule property. The respondent and her family members filing cases over cases on the same property by abusing the process of the Court. Raghavachar, the husband of the respondent and Lingappachar are the direct brothers. The respondent herein is the wife of brother of her vendor as Lingappachar is her vendor. The said Lingappachar filed a suit in O.S. NO. 124/1979 for the very suit schedule property contending that he has purchased the same under the sale deed dated 29.11.1967 for R. 1,000/from one Rajappa. He had contended that he had given the suit house on rent and his tenant had vacated the house on 1.1.1978 and thereafter, petitioner No. 1 herein had entered the house unauthorisedly and staying there. Hence Lingappachar filed the suit for recovery of possession from petitioner No. 1 herein. Petitioner No. 1 contended that the suit house is in Sy. No. 116/2 and not in the property said to have been purchased by Lingappachar. In the said suit, the Commissioner was appointed to verify the fact that whether the suit house is situated in Sy. No. 116/33 or in Sy. No. 116/2. The Commissioner gave the report as per Ex. P. 9 stating that the suit house is situated in Sy. No. 116/2. But however, the Munsiff decreed O.S. No. 124/1979 basing on the municipality number of the suit house. The said decree was challenged by petitioner No. 1 by preferring an appeal and the Civil Judge was pleased to allow the appeal holding that Lingappachar vendor of the respondent had failed to prove that the suit house was situated in Sy. No. 116/33 and he had also not proved as to how and when Sy. No. 116/33 was subdivided as Sy. No. 116/33A. Accordingly, the said appeal was allowed on 28.2.1980 and the said order passed in the appeal court has become final.

(3.) THE petitioners filed I.A. No. 3 in execution case under Section 151 of CPC praying the executing Court to dismiss the execution petition. The said application was dismissed on 6.2.2006. Though the executing Court was of the opinion that petitioners herein have to get corrected the order passed in the above appeal on 30.3.2001, they were helpless because of the vicarious financial conditions and the old age of his mother.. The executing Court was also pleased to allow I.A. No. 5 filed by the respondent permitting her to amend the' execution petition by changing Sy. No. 116/33A by order dated 26.2.2008. Due to financial condition, the petitioners were persuading the local Counsel to prove with regard to the identity of the property and the local counsel was trying his best by filing necessary applications. The local counsel has also filed an application praying the executing Court to hold an enquiry with regard to identity of the suit property which is still pending. But the executing court has orally directed the counsel for the petitioners herein to get set aside the modified decree passed by this Court. Hence, they have filed the present review petition.