P ASHOKAN Vs. K RAMACHANDRAN

JUDGEMENT

(1.) The Petitioner is second Plaintiff in O.S. No. 1259 of 1979 which was filed against the first Respondent. The second Respondent was the first Plaintiff in the suit. A decree was passed in favor of this Petitioner directing the first Respondent to remove illegal construction and to hand over possession of the suit property. The first Respondent preferred an appeal before the Sub Court, Krishnagiri in A.S. No. 47 of 1990 and the same suffered dismissal on 11.02.1999 against which he preferred Second Appeal before the High Court in S.A. No. 647 of 1991 which also was dismissed. In this context, the Petitioner filed REP No. 54 of 2003 on the file of the District Munsif Court, Krishnagiri arraigning both these Respondents as Respondents seeking to execute the decree.

(2.) He has alleged that after the disposal of the Second Appeal by the High Court, a partition was affected in the family in which the suit properties and other properties were allotted to his share. The second Respondent filed suit in O.S. No. 32 of 2001 and the same is pending. The Petitioner has also filed a suit in O.S. No. 61 of 2000 for declaration and injunction. In view of the pendency of the said suit, the second Respondent does not co-operate with him to execute the decree. Therefore, the present execution petition has been filed. As per order 21 Rule 15 Code of Civil Procedure, one among the decree holder is entitled file an execution petition. No prejudice would be caused to the second Respondent in executing the decree. No claim is made against him. The second Respondent is impleaded for proper adjudication since he is a party in the suit. Therefore, notice may be issued to the Respondents and execution may be ordered.

(3.) In the counter filed by the first Respondent adopted by the second Respondent, it is mentioned that the second Respondent is also one among the decree holders. The Petitioner has suppressed the true facts to grab the suit property. In O.S. No. 1259 of 1979, one of the decree holders, namely this second Respondent, after disposal of the Second Appeal has received a sum of Rs. 15,000/-from the first Respondent in the Panchayat held in the village relinquishing his right and his son's right over the suit property and affirmed that he would not approach the Court. He also assured that no Court proceedings would be vitiated. Hence, the petition may be dismissed.