T K AYUB Vs. MOHAMMED HANIF

JUDGEMENT

(1.) The Civil Revision Petition arises out of the order of dismissal, dated 16.3.2004 in E.A. No. 157 of 1999 in E.P. No. 237 of 1998 in O.S. No. 50 of 1977 on the file of the Principal District Munsif Court, Pondicherry. The Petitioner has filed E.A. No. 157 of 1999 under Section 47 read with 151 of the Civil Procedure Code, to dismiss the Execution Petition in E.P. No. 237 of 1998, as the decree dated 21.6.1977 in O.S. No. 50 of 1977 is unexecutable, unenforceable and nullity in law, stating that the Trial Court has no jurisdiction to entertain the Suit and so, the decree itself is non-est in the eye of law. Further, the Petitioner pleaded that even after the decree has been passed, the Respondents herein as decree-holders, earlier filed E.P. No. 279 of 1980, which was allowed, against which the Petitioner herein filed C.M.A. No. 5 of 1981 before the Principal District Court, Pondicherry, in which, there was an endorsement made by the decree-holders not pressing the relief for certain portion of the decree. Even then, the Petitioner continued to be cultivating the crops other than paddy in a portion of the land, whenever sufficient water was not available. After a lapse of nine years, the Respondents herein filed another Execution Petition in E.P. No. 17 of 1990, which was allowed on 5.7.1990 and against that, the Revision Petitioner herein preferred C.R.P. No. 2160 of 1990 before this Court and on 19.4.1996, this Court allowed the said C.R.P. and set aside the order of arrest passed in E.P. No. 17 of 1990. Furthermore, the Petitioner has averred that with the knowledge of the decree-holders (the Respondents herein), the Revision Petitioner raised crops other than paddy, as agreed in the lease deed and hence, the decree-holders are estopped by law of acquiescence. The Revision Petitioner herein prayed for allowing E.A. No. 157 of 1999 and for dismissing E.P. No. 237 of 1998 in O.S. No. 50 of 1977, stating that the decree itself is nullity.

(2.) The Respondents herein, the decree-holders, resisted the E.A. by stating that the Respondents herein have filed the Suit for bare injunction restraining the Revision Petitioner/Defendant from raising the crops other than paddy and after contest, the decree has been passed and no Appeal was filed and it is final and binding on both parties. In pursuance of the same, the E.A. is not maintainable. Furthermore, the Respondents/decree-holders stated that they filed another E.P. No. 279 of 1980 for attachment of the crops raised in violation of the decree of injunction and also to restore the land in its original status, and the said E.P. No. 279 of 1980 was allowed. In the course of the subsequent E.P. filed by the Respondents herein in E.P. No. 17 of 1990, since the Executing Court found violation, E.P. No. 17 of 1990 was allowed, against which, C.R.P. No. 2160 of 1990 was filed by the Revision Petitioner herein, before this Court and this Court held that the order of arrest of the judgment-debtor (Revision Petitioner herein) after nine years, is harsh and not in accordance with law and the order of arrest in the E.P. was set aside. There is no question of applicability of law of acquiescence or requirement of any notice as is claimed in the E.A. The Respondents prayed for dismissal of the E.A.

(3.) The learned Judge of the Executing Court, after considering the evidence of P.Ws.1 and 2 and R.W.1 and Ex. P-1, dismissed the E.A., stating that the E.A. is not barred by the Principle of acquiescence. Against the said order, the present C.R.P. has been filed by the Petitioner-Cultivating Tenant.