RAJAMANI GURUKKAL Vs. RAMA

JUDGEMENT

(1.) The judgment-debtor in O.S. No. 192 of 1998 on the file of the District Munsif Court, Sirkali, is the Revision Petitioner. O.S. No. 192 of 1998 was filed by the Respondents herein and the 2nd Respondent being a Trust was represented by the Managing Trustee Mr. P. Rajagopalan. The Suit was for recovery of arrears of rent and damages and for use and occupation and for other reliefs. The Suit was decreed and confirmed in the First and Second Appeal. Thereafter, the Respondents/ decree holders filed Execution Petition in E.P. No. 65 of 2010 to execute the decree passed in O.S. No. 192 of 1998 and in that Execution Petition the Trust was represented by the Trustee-R. Venkatesh as per the resolution dated 5.7.2007 and that Execution Petition was allowed as prayed for. Against the same, this Revision is filed by the Revision Petitioner.

(2.) Mr. A. Thiyagarajan, the learned Counsel for the Revision Petitioner submitted that the Execution Petition No. 65 of 2010 filed by the Decree holders ought to have been rejected by the executing Court as proper persons have not filed the Application for execution and the 2nd Respondent herein who was the 2nd Respondent in the Execution Petition was originally represented by one P. Rajagopalan during the trial and without filing any Application to replace him the Trust was represented by one R. Venkatesh and therefore the Respondents herein are not proper parties to file the Execution Petition and therefore, the Court below ought to have rejected the Execution Petition as it is against the provisions of Order 21, Rules 11, and 16 of C.P.C. In support of his contention he also relied upon the following Judgments reported in Kariyamma and others v. Assistant Commissioner and Land Acquisition Officer, 1993 AIR(Kar) 321 Ghulam Nabishe v. Gaffer Wagey, 1983 AIR(J&K) 67 Sangappa Mallappa Kuri v. Special Land Acquisition Officer, Bagalkot, 2003 AIR(Kar) 142 Jiwani v. Rajmata Basantika Devi and others, 1994 AIR(SC) 1286 Baisnab Das Sett v. Bholanath Sen and another, 1986 AIR(Cal) 118 and Rai Mathura Prasad v. Special Officer, Bihar Hindu Religious Trust Board and others, 1984 AIR(Pat) 227 He further contended that there is variance in the description of property and as per the decree passed in O.S. No. 192 of 1998 the suit property is bounded on the North by Punja Lands of Murugesa Mudaliar, South of Street, West of Narayanan's house and East of P.B.K. Rengarajan's property and as per the Schedule to the Execution Petition in E.P. No. 65 of 2010 the property is bounded on the North by Punja Lands of Murugesa Mudaliar, South by Street, West by Narayanan's house and East by P.B.K. Rengarajan's property and the Southern, Western and Eastern boundaries are different from that of the Plaint schedule as per the Decree passed in O.S. No. 192 of 1998 and therefore the Execution Petition ought to have been rejected as the property sought to be delivered is different from the property described in the Plaint.

(3.) Mr. T.R. Rajaraman, the learned Counsel for the Respondents submitted that there is no variance in the description of property and as per the Decree passed in O.S. No. 192 of 1998 the schedule of property was given in E.P. No. 65 of 2010 and also produced the certified copy of the Decree in O.S. No. 192 of 1998 in support of his contention. He further submitted that even assuming that there is some variance in the boundaries the property is not a vacant site and the property is a building having Door Number and there is no dispute regarding the Door Number 4/22 and Survey Number 142/10 and therefore having regard to the nature of the property namely the house with a specific Door Number, it cannot be contended that there is a difference in the property described in the Decree and the property sought to be executed in the Execution Petition. He further submitted that O.S. No. 192 of 1998 was taken up to this Court and the Decree passed in O.S. No. 192 of 1998 was confirmed by this Court in the Second Appeal and the records in the Second Appeal in S.A. No. 51 of 2003 may be called for to verify the description of property in O.S. No. 192 of 1998.