S SHANMUGASUNDARAM Vs. S MURUGAMANICKAM

JUDGEMENT

(1.) THIS Revision has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the "CPC") against the fair and decreetal order dated 07.06.1999 made in R.E.A.No.882 of 1993 in R.E.P.No.2 of 1991 on the file of I Additional District Munsif, Salem.

(2.) THE Decree-Holder is the revision petitioner. THE petitioner filed the suit in O.S.No.1601 of 1985, for a declaration of the right over a common wall as per the partition deed dated 23.09.1991 and for a mandatory injunction to compel the defendant to construct the wall. THE trial Court by its Judgment and decree dated 30.04.1990, directed the construction of the wall as per the plan Exhibit A2 and the cost of such construction to be borne equally and for payment of rent and other reliefs. For better appreciation, the decree granted by the trial Court is extracted as hereunder:- VERNACULAR (TAMIL) PORTION DELETED

(3.) THE respondent resisted the claim petition by filing a counter affidavit inter alia contending that the petition is not maintainable and the same cannot be entertained under Section 47 CPC, and as there is no decree for the amount claimed by the petitioner, though the Executing Court cannot direct reimbursement of said amount and the petitioner cannot seek for the said amount without payment of Court fee. Further, it is stated that a sum of Rs.40,000/- said to have been paid by the petitioner for vacating his tenant is a voluntary payment made by the petitioner without any concurrence from the respondent and the respondent is not bound to honour such claim. THE Executing Court held that in terms of the decree, the petitioner is entitled to recover half the amount spent by him for construction of compound wall including the Commissioner's remuneration and held that the petitioner is entitled to recover a sum of Rs.28,520/- with cost. In respect of the other claim made by the petitioner, the Executing Court held that the scope of the petition under Section 47 is limited and the petitioner is not entitled to any relief. Challenging the said order dated 07.06.1999, the petitioner is before this Court by way of the present Civil Revision petition.