DOUGLAS (DIED) Vs. PARIMALA MERRY

JUDGEMENT

(1.) This Civil Revision Petition has been filed to strike down the execution petition in E.P.No.787 of 2012 in O.S.No.7828 of 1993 on the file of the IX Assistant Judge, City Civil Court, Chennai.

(2.) The learned Senior Counsel submitted that the petitioners are the defendants 5 to 9 in the suit filed by the father of the respondents 1 to 4 herein for partition and separate possession along with a direction directing the second defendant in the suit to render a true and correct account in respect of the suit property. The suit was dismissed by the Judgment and Decree dtd. 29/8/2002. Aggrieved by the same, the respondents 1 to 4 filed an Appeal Suit in A.S.No.269 of 2005 and the same was allowed by the Judgment and Decree dtd. 8/7/2008. Aggrieved by the same, the petitioners preferred a Second Appeal before this Court in S.A.No.926 of 2014. This Court partly allowed the appeal and modified the preliminary decree only to the extent of superstructure alone and in other aspects the decree passed by the First Appellate Court was confirmed. Thereafter, the respondents filed an application for final decree in I.A.No.10802 of 2009, which is pending. Without even passing any final decree, the respondents 1 to 4 filed an Execution Petition in E.P.No.787 of 2012 in respect of the decree for render of true and correct accounts of the income derived from the suit property from the year 1993 till the date of partition. He further submitted that the Execution Petition is not at all maintainable under Order 21 Rule 32 of CPC . The Order 21 Rule 32 is meant for the decree of specific performance, for restitution of conjugal rights and for injunction.

(3.) In the case on hand, the suit is for partition, in which directed to render accounts till partition. The Appellate Court decree is un-executable by levying Execution Petition enactments and no final decree having been passed insofar as mense profit as reflected in Sub Class IV of the Order 20 Rule 12 of CPC. In terms of the said provision in the final decree application, they have to conduct an enquiry regarding mense profit and after determination of it subject to the objections if any, raised by any party and then pass a decree upon the payment of Court fee as determined thereon. Admittedly, the Execution Petition has been filed by the respondent with a prayer to pass an order to bring the petitioners for violation of the orders passed in the Appeal Suit arrest and detention. Therefore, the Execution Petition itself is not maintainable and it is liable to be strike off.