S VENKATARAMAN ALIAS BALAJI Vs. KANAKADHARAN

JUDGEMENT

(1.) CRP No.2900 of 2008 : This revision petition has been filed by the petitioner/decree holder against the order of dismissal dated 12.02.2008 passed in EP No.2078 of 2005 in OS No.2922 of 2002 on the file of X Assistant City Civil Judge, Chennai.

(2.) CRP No.2900 of 2008 : This revision petition has been filed by the petitioner against the order passed in EA No.3294 of 2007 in EP No.2078 of 2005 in OS No.2922 of 2002 on the file of X Assistant City Civil Judge, Chennai dated 12.02.2008 in allowing the said application.

(3.) THE learned counsel for the petitioner would submit in his argument that the lower Court namely the execution Court was wrong in allowing the application filed by the judgment debtor in E.A.No.3294 of 2007, who was impleaded as legal representative of the judgment debtor and her right was already decided in the suit and nothing is required to be adjudicated in the said application. He would further submit that the respondent claimed as a permissive occupier in the said property and it was considered without any evidence and the decree passed by the trial Court will bind her, whereas the execution Court had miserably failed to hold that the right of the respondent as judgment debtor was independent with the permissive occupation and it can be maintained under Section 47 (3) of CPC are not sustainable. He would further submit in his argument that the respondent was impleaded as a sole legal representative of the deceased and the respondent can claim only the right accrued under her deceased husband and no independent claim or right, if any pleaded, cannot be invoked in the execution application. He would also submit in his argument that the lower Court had failed to note that the permissive possession was given only to the husband of the respondent and the respondent lived together with her husband the 1st defendant and the mother of the defendant namely, the testatrix had left the Will in favour of the petitioner/plaintiff and the probate proceedings were also ended in favour of the plaintiff after the life time of the testatrix and the testatrix was not alive to give any permission to the respondent, after the death of her husband to continue the possession of the suit property and therefore, the decision reached by the lower Court that the respondent has got an independent right of permission to continue in the suit property and she has established such right are not correct. He would further submit in his argument that the respondent did not take any steps to establish her alleged right of permission during the life time of her husband and therefore, there cannot be any independent right derived by her from her mother-in-law, the testatrix. He would also submit in his argument that the executing Court cannot go beyond decree except in cases, where the trial Court has no jurisdiction to pass such a decree. He would further submit in his argument that when the decree passed by the trial Court became final without being questioned in appeal or revision, such decree even if it is erroneous would still bind the parties to the said suit and their representatives. He would draw the attention of the Court to the judgment of the Honourable Apex Court reported in (1970) 2 MLJ 85 (SC) in between Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others in support of his arguments. He would further cite a judgment of this Court for the same proposition of law reported in (2007) 1 MLJ 484 in between M.Baskaran v.M.Sabathy. THErefore, he would request the Court that the finding reached by the lower Court that the decree passed against the husband of the respondent, on which, E.P., has been launched against the husband and after his death, the respondent being impleaded in his place as his legal representative cannot be executed is against all propositions of law and therefore, the said order passed in the application in E.A. No.3294 of 2007 to dismiss the E.P., has to be dismissed and the dismissal of the E.P., have to be interfered and set aside.