VELU Vs. ARIKRISHNAN

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the respondents 4 to 7 challenging the delivery order made in E.P.No.133 of 2000 in O.S.No.388 of 1981 on the file of Principle Sub Judges, Pondichery.

(2.) THE decree-holder Ukkaravelu as the power agent of one Adhilakshmi Ammal alias Poubathiammal filed E.P.No. 45 of 1984 for delivery of possession of the property and the same has been terminated by recording delivery in favour of the decree-holder Ukkaravelu. THE first respondent Arikrishnan purchased the property from the decree-holder Ukkaravelu and Arikrishnan also filed execution petition in E.P.No.133 of 2000 after disposal of appeal in A.S.No.939 of 1985 in this Court. THE Judgment-debtor Malayan preferred appeal in A.S.No. 939 of 1985 to this Court and he died during the pendency of the appeal. THE petitioner/respondents 4 to 7 were added as the legal representatives of the judgment-debtor Malayan. THE purchaser Arikrishnan filed second execution petition in E.P.No.133 of 2000 after disposal of the appeal in A.S.No. 939 of 1985 stating that he has not taken physical delivery of the property and he has filed the E.P. No. 133 of 2000 seeking physical possession of the property from the judgment-debtors, viz., Malayan and Nagarajan and the legal representatives of the deceased Malayan in view of the purchase of the property from the decree-holder. THE first respondent/petitioner has also been impleaded as a party to the proceedings in A.S.No.939 of 1985 before this Court.

(3.) UKKARAVELU as the power agent of one Adhilakshmi Ammal filed a suit in O.S.No. 338 of 1981 and the same was decreed on 26.9.1983. Her mother Adhilakshmi Ammal died during the pendency of the suit and UKKARAVELU took possession of the suit property viz., thatched building situate at Chunnambu Clavapath, commune of Pondichery to the north of coconut thope of Ville Blane Savariacoutty to the south of Road, to the east of the manai of Suprayan and to the west of manai of Annamalai, containing five Kulies and 3/16. He took possession of the suit property on 10.7.1984 throgh Court in E.P.No. 45 of 1984 and the same was also recorded by the Principal Sub Court, Pondicherry on 13.7.1984. Consequently, E.P.No. 45 of 1984 was also terminated and Malayan did not vacate the property and he continued to be in possession of the same. As per sale deed dated 18.11.1985, the first respondent purchased the property. He was also impleaded as respondent in the appeal in A.S.No. 939 of 1985 in this Court. The appeal is partly allowed by setting aside the decree against the first defendant to pay the arrears of rent. In other respects the judgment and decree of the trial Court is confirmed in the appeal. It has also been observed by this Court in A.S.No.939/85 that possession of the suit property continues to be with Malayan. It appears that after the delivery of possession of the suit property through Court on 10.7.1984 in E.P.No. 45/84 by Ukkravelu, Malayan filed A.S.No. 939 of 1985 in this Court challenging the correctness of the judgment made in the suit in O.S.No. 380/81. It is not in dispute that Malayan continued to be in possession of the property, despite the fact that in E.P.No. 45/84 delivery was effected on 10.7.1984 and the execution petition was also terminated after recording the delivery on 13.7.1984. The recital is also made in the sale deed dated 18.11.1985 that the first respondent purchased the property from UKKARAVELU and the possession was delivered to him on the same day. The purchaser, Arikrishnan filed E.P.No. 133 of 2000 seeking delivery of the property. According to the revision petitioners E.P.No. 133/2000 is not proper and maintainable because as per records delivery was effected on 10.7.1984 in E.P.No. 45/84 and the same was recorded on 13.7.1984. As rightly argued by the petitioners, who are legal representatives of the judgment debtor Malayan, the Execution Petition 133 of 2000 filed by Arikrishnan is not maintainable, in view of the fact that UKKARAVELU already took possession as early as on 10.7.1984. It is not Ukkravelu who filed Execution Petition 133/2000 seeking delivery of the property stating that actually property was not deliverd on 10.7.1984 in E.P.No. 45/84. Hence, E.P.No. 133 of 2000 filed by the purchaser Arikrishnan seeking delivery of the property again by stating that actually delivery was not effected on 10.7.1984 and possession was not handed over to UKKARAVELU in E.P.No. 45/84 is not proper. It is not known as to why UKKARAVELU could not file Execution Petition earlier stating that no actual delivery was effected and only symbolical possession was handedover in E.P.No. 45/84 on 10.7.84. Therefore, now it is not open to the purchaser, Arikrishnan to seek possession of the property stating that actually delivery was not effected on 10.7.1984 in E.P.No. 45/84 and what was handedover was only symbolical possession.