MOHAN Vs. DALMIA MAGNESITE CORPORATION SALEM

JUDGEMENT

(1.) FIRST respondent in R.E.P.No.7 of 1996 on the file of District Munsif, Omalur is the revision petitioner. Aggrieved by the order of the learned District Munsif, dated 13.4.1999 recording the memo filed by the respondent-Dalmia Magnesite corporation in R.E.P.No.7 of 1996 holding that the petitioner herein alone is sufficient to execute the decree, has filed the present revision. According to him, the respondent herein filed R.E.P.No.7 of 1996 against the petitioner and his mother Perumayee to execute the decree passed in O.S.No.590 of 1983 on the file of District Munsif, Mettur. As per the decree the defendant should have to deliver the possession. During the pendency of the said execution proceedings his mother, the second respondent in E.P. passed away. The respondent herein filed a memo to the effect that no legal representatives be added as the petitioner herein can represent the deceased second respondent in the E.P. He filed a detailed objections objections opposing the memo stating that there are legal representatives to the deceased 2nd respondent in E.P. and all the legal representatives be brought on record after proper notice to them. It is further stated that without considering the said valid objection, the court below by the impugned order, recorded the memo, against which he has filed the present revision.

(2.) IT is the case of the respondent that the petitioner cannot be said to been aggrieved person by virtue of the impugned order dated 13.4.1999 passed on the memo filed in R.E.P.No.7 of 1996. Inasmuch as he is no way affected by virtue of the impugned order, the revision is not maintainable. IT is stated that the suit property of an extent of 8.00 Acres in Survey No.125/1 in Vellakalpatty village, Omalur Taluk, Salem District, was acquired by the Government from the father of the petitioner and one Chinna Gounder by G.O.Ms.No.3037, dated 5.8.1958 for the purpose of dumping mining wastes by the respondent Corporation. Since the petitioner herein and his mother Perumayee trespassed into the suit property, the respondent herein was forced to file O.S.No.590 of 1983 on the file of District Munsif, Mettur for delivery of possession and for mesne profits. The suit was decreed on 15.3.1989 and the respondent herein filed R.E.P.No.31 of 1991 for executing the abovesaid decree. As per the decree, the respondent herein and his mother have to deliver possession of the suit property within two months and in default the respondent is at liberty to take delivery of possession through process of court. In the execution proceedings, the petitioner and his mother filed R.E.A.No.327 of 1993 for appointment of a Commissioner to note down the physical features of the suit property. Though the Commissioner was appointed by the Executing Court in R.E.A.No.327 of 1993, this Court in C.R.P.Nos.3276 of 3277 of 1993 set aside the order appointing the Commissioner holding that the Executing Court cannot go beyond the scope of the decree. Subsequent to the above order, the respondent herein came to know that the mother of the petitioner viz., Perumayee died on 25.6.1998. Since the petitioner herein and his mother alone were admittedly in possession of the suit property and the possession has to be taken from them and since the petitioner is the son of the deceased. Perumayee, the respondent herein filed a memo dated 15.9.1998 stating that the delivery has to be ordered in terms of decree from the petitioner herein and that since the petitioner herein who is the son of the deceased Perumayee is already on record, no other legal representatives of the deceased have to be brought on record and no steps need to be taken by the decree-holder. The Executing Court after enquiry, recorded the memo and ordered to proceed further with the execution proceedings. IT is stated that the only intention of the petitioner is to drag on the proceedings as long as possible.

(3.) IN Seethanna v. Lakshmi Devi A.I.R. 1962 A.P. 520, a Division Bench of the Andhra Pradesh High Court, in a similar circumstance, after referring to O.22, Rule 12 and O.21, Rule 96, C.P.C. have held that there is no legal obligation on the part of a decree-holder to implead the legal representatives of a deceased judgment-debtor at the stage of taking delivery of possession of property and the proceedings taken under O.21, Rule 96, without impleading them cannot be held to be void while arising such conclusion their Lordships have followed the Division Bench Judgment of this Court in Pethaperumal v. Chidambaram A.I.R. 1954 Mad. 760. The said decisions support the stand of the respondent. INasmuch as the decree is only against the petitioner and her mother and the suit having been filed on the ground that they alone trespassed into the suit property and also in view of their assertion in the form of an affidavit that they alone were in physical possession of the suit property after the death of his mother Perumayee, I am of the view that it is unnecessary to issue notice to the other legal representatives of the said Perumayee. IN other words, in the light of the factual position and in terms of the provisions of the Code of Civil Procedure, there is no obligation on the part of the respondent-decree-holder to issue notice to the other legal heirs, namely, the sisters of the petitioner herein. The court below is right in recording the memo filed by the respondent herein, and I do not find any error or infirmity in the order impugned.