DHARMARAJA VELLALAR Vs. RAMACHANDRA VELLALAR

JUDGEMENT

(1.) CIVIL Revision Petition No. 42 of 1990 arises against the order made in E. P. No. 6 of 1988 in O. S. No. 5 of 1960 on the file of the learned subordinate Judge, Pattukottai. The first defendant/first judgment-debtor, is the petitioner in the civil revision petition and the plaintiff/decree holder is the respondent. A preliminary decree against the first defendant/petitioner was passed on 8. 21965 and the final decree was passed on 24. 1. 1979. In this e. P. , the respondent has claimed a sum of Rs. 1,16,315. 55. The E. P. is filed under 0. 21, Rules 54,66 and 72 and under Sec. 151 C. P. C. for realisa-tion of the said amount by order of attachment and sale of the property of the first defendant mentioned in the E. P. The execution is resisted by the first defendant by filing a counter contending inter alia that the plaintiff/decree holder is not entitled to claim his share in the execution petition. The preliminary decree is to the following effect: 'that the plaintiff be and hereby entitled to recover 1/2 share in the outstandings of Rs. 52,000 in the E. Schedule. So, any claim contrary to that which is provided for in the preliminary decree cannot be countenanced.' Further, the petitioner herein has submitted that he has preferred an appeal to this Court against the final decree and that the matter is pending in this Court. The execution petition, according to him is therefore premature. The lower court negativing the contention of the petitioner herein, allowed the execution petition to be proceeded with further. The lower court in its order has observed that even if the counsel fee has been exaggerated in the execution petition, it could be reduced later on after the properties were sold and the sale proceeds were collected. The lower court also has observed that there is no evidence to show that an appeal has been filed in this Court as against the final decree and that there is no stay also from this Court. With this observation, the lower court allowed the execution petition.

(2.) IN this C. R. P. No. 42 of 1990, the petitioner has contended that the decree-holder had admitted in the lower court that he has been in exclusive possession and enjoyment of 24 acres of land. The other contention raised by the petitioner herein, is that the parties are separately in possession and enjoyment of the properties and that they should be allowed to retain those properties.

(3.) IN the civil revision petition, the petitioner has submitted that if the order striking off the copy application is not set abide and the petitioner is not permitted to comply with the copy application and obtain a certified copy of the decree in the final decree application, the petitioner would lose his right of appeal which would result in irreparable loss and injury to him. The next contention is that no prejudice would be caused to the respondent if the order striking off the copy application is set aside and copy application is restored to file. According to him, the lower court failed to consider the fact that there is sufficient reason for the delay and the dismissal of the petition on the ground that there is no sufficient reasons for the delay, is not correct.