JAMEELA BEE Vs. RAGUPATHY

JUDGEMENT

(1.) THE first defendant in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam is the revision petitioner in both the revisions.

(2.) THE first respondent filed the suit in O.S.No.69 of 1986 on the file of the Sub Court, Tindivanam for declaration and recovery of possession of the suit properties from the defendants in that suit. THE suit was decreed by judgment and decree dated 14.12.1987 and the plaintiff was declared as owner of the suit property and the first defendant was directed to hand over vacant possession within a period of two months. THE first appeal filed in A.S.No.196 of 1988 on the file of the District Court, Cuddalore was also dismissed and in the Second Appeal in S.A.No.1041 of 1991, this court confirmed the decree regarding declaration and further directed the first and second defendant to hand over possession of the suit property to the plaintiff. THEreafter, the plaintiff filed E.P.No.13 of 2003 in O.S.No.69 of 1986 (Sub Court, Tindivanam) before the District Munsif, Gingee on the ground that due to change of jurisdiction, both territorial and pecuniary, the decree can be executed only before the District Munsif Court, Gingee. E.P.No.13 of 2003 was dismissed by the District Munsif, Gingee holding that the execution petition can be filed by the decree holder only before the court which passed the decree viz., the Sub Court, Tindivanam and without transfer of the decree as provided under the Code, the decree cannot be executed before that court by virtue of section 37 of the Code of Civil Procedure. It was further held that E.P.No.13 of 2003 was not maintainable as the District Munsif has no jurisdiction to entertain the application. THEreafter, the plaintiff filed another Execution Petition in E.P.No.189 of 2004 before the District Munsif, Gingee and that petition was also dismissed holding that earlier application in E.P.No.13 of 2003 was dismissed on merits and therefore, without filing a revision challenging the order passed in E.P.No.13 of 2003, the second Execution Petition in E.P.No.189 of 2004 was not maintainable. THEreafter, the plaintiff/decree holder applied for transfer of the decree passed in O.S.No.69 of 1986 by filing E.A.No.115 of 2007 and after getting an order, filed E.P.No.22 of 2008 to execute the decree. That petition was opposed by the revision petitioner stating that the present Execution Petition is barred by res judicata as earlier E.P.No.13 of 2003 and E.P.No.189 of 2004 filed before the District Munsif, Gingee were dismissed on merits and without impleading the legal representatives of the second respondent, the transfer ordered by the Sub Court, Tindivanam transferring the decree passed in O.S.No.69 of 1986 is not valid. That Execution Petition was allowed and against the same, the revision petitioner filed C.R.P.No.2512 of 2009.

(3.) ON the other hand, the learned counsel for the first respondent Mr.Muthukumar submitted that though the learned Sub Judge decreed the suit on 14.12.1987, as per the decree passed by the Sub Court in O.S.No.69 of 1986, the declaratory relief was granted and the first defendant was directed to hand over vacant possession and only in Second Appeal No.1041 of 1991, the decree was modified and the second defendant was also directed to hand over possession along with the first defendant and the second appeal was disposed of on 2.11.2001 and by reason of the modification of the decree passed in the Second Appeal, the decree passed in O.S.No.69 of 1986 merged with the decree passed in the Second Appeal and therefore, E.P.No.22 of 2008 filed on 8.8.2007 is within the period of limitation from the date of decree passed in S.A.No.1041 of 1991. In support of his contention, he relied upon the judgment in ramkrishna bajirao gotmare v. kanhaiyalal tribhuwanlal shah (AIR 1990 BOMBAY 361). He further submitted that dismissal of E.P.Nos.13 of 2003 and 189 of 2004 was not on merits and those Execution Petitions were dismissed on the ground that in the absence of transfer of the decree passed in O.S.No.69 of 1986 from the Sub Court, Tindivanam, the decree holder cannot file Execution Petition before the District Munsif, Gingee stating that after the alteration of pecuniary as well as territorial jurisdiction, the District Munsif, Gingee has got jurisdiction to entertain the Execution Petitions and those two orders were not passed on merits and therefore, the judgment in E.P.Nos.13 of 2003 and 189 of 2004 will not operate as res judicata. He further submitted that within the period of limitation, the decree holder is entitled to file any number of execution petitions and therefore, it cannot be stated that dismissal of earlier Execution Petitions will operate as res judicata.