K LAKSHMIAMMAL Vs. M P NAVEEN KUMAR

JUDGEMENT

(1.) CHALLENGING the order dated 22.2.2010 passed in E.A.Sr.No.4128 of 2010 in E.P.No.468 of 2009, on the file of the learned X Assistant City Civil Judge, Chennai this Civil Revision Petition has been filed.

(2.) AS per the impugned order, it is seen that an unnumbered E.A. in Sr.No.4128 of 2010 was filed by the petitioner/judgment debtor No.1 under section 47 of CPC seeking to hold that the decree passed in O.S.No.8449 of 1996 dated 10.01.2003 is null and void and inexecutable. It is seen that an execution application was filed in E.P.No.468 of 2008 on the ground that the suit itself was barred on account of non-joinder of necessary parties, among other grounds raised therein. AS per the impugned order, the petitioner/judgment debtor No.1 had entered appearance in the execution petition in E.P.No.468 of 2009, however, she has not filed any counter and also file petition to set aside the ex-parte order passed in the E.P. On 14.10.2001, subsequently delivery of possession was ordered on 29.01.2010. The petitioner/judgment debtor No.I has not taken any steps to set aside the ex-parte order but filed the execution application under Section 47 of CPC, after the order for delivery of possession was passed in the main execution petition. The Court below took a view that the petition filed in E.A.Sr.No.4128 of 2010 was not legally maintainable. It is not in dispute that the petitioner herein had filed three more applications in the Execution Petition viz., (1) to set aside the ex-parte order dated 14.10.2009 (2) to stay all further proceedings, (3) to dismiss the execution petition and the same were rejected. The Court below has found that the application seeking relief to set aside the ex-parte order dated 14.10.2009 was not maintainable, as the same was filed after the period of limitation. The execution court has further held that the petitioner herein has not explained as to how the petitioner, being a judgment debtor who had failed to contest the main execution petition and was set ex-parte could make a claim in the application filed under Section 47 CPC. The E.P. Court held that the application filed under Section 47 of CPC was not maintainable and on that ground the court below rejected the unnumbered applications filed by the petitioner herein.

(3.) MR.R.Thiagaraj, learned counsel appearing for the respondent submits that the aforesaid decision is not applicable to the facts and circumstances of this case as it cannot be said that there is more than one operative decree governing the same subject matter.