ELANTHAMMAL Vs. ALAGAR

JUDGEMENT

(1.) THE petitioners whose application under Order 21, Rule 97, Civil Procedure Code was rejected have filed the present civil revision petition.

(2.) ACCORDING to the averments in the petition filed in the Court below, the shops subject matter of the civil revision petition at 28th Cross Street, Indira Nagar, Adyar, Chennai-20, were allotted to the petitioner Nos.1 and 2 respectively. They had put up their own construction, obtained electricity connection and had been carrying on the business. The allotment was made to the first petitioner to put up a mechanical shed and to the second petitioner to put up a wet grinder. The first respondent filed W.P.No.10700 of 1989 where one Ganapathy Automobiles, one V.K.G. Durai and one Meena Auto Works were made the sixth, seventh and eighth respondents and the prayer was for a mandamus to abate the nuisance caused by them. The writ petition was ordered by this Court on 19.9.1998 directing the said respondents to apply for license fee from the Corporation to carry on their workshop and other business and obtain orders from the Corporation. In the order passed in the writ petition it was stated that the respondents had paid the license fee. Therefore, four weeks time was granted to pass orders thereon. The learned Judge left it open to the first respondent therein namely the Commissioner, Corporation of Madras, to consider the question of nuisance. On 23.9.1994, the first petitioner obtained a decree in O.S.No.2711 of 1993 for permanent injunction restraining the Chairman, Tamil Nadu Slum Clearance Board, who is the second respondent herein from interfering with her possession. Subsequently, they came to know that the first respondent had obtained decree on 28.2.1994 in O.S.No.7712 of 1990. They also learnt that this suit was filed by the first respondent against the second respondent for a mandatory injunction to remove the automobile workshop tinkering, welding and painting in the suit properties. The petitioners were not parties to the suit. The first respondent filed E.P.No.2043 of 1996 to execute the decree obtained by him on 28.2.1994 in O.S.No.7712 of 1990. After getting details of the suit the petitioners filed O.S.No.1404 of 1998 for cancelling the decree and also for an application to stay the operation of the decree. The petitioners also filed an application under Order 21, Rule 97, Civil Procedure Code in the Execution Petition filed by the first respondent to adjudicate upon her right. This was rejected and hence the above civil revision petition was filed.

(3.) NO doubt, the decree in O.S.NO.7712 of 1990 is for a mandatory injunction to remove the welding and the tinkering materials from the properties. But, when the case of the petitioners is that their possession in the disputed property is itself only for carrying on the tinkering, welding and other mechanical work, compliance with the decree for mandatory injunction to remove all the materials would in effect erase their possession. Once everything is erased to the ground or thrown out, it amounts to removing their possession or presence from the disputed property. As regards the point raised by the learned counsel for the respondent that actually it is not the petitioners who are in the suit property but they had sublet it to third persons. This is strongly denied. According to the learned counsel for the petitioner, it is the 1st petitioner's son Kuppusamy who is carrying on the mechanical shop in the place allotted to her and that it is not correct to state that it has been sublet to anybody.