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 be- fore this Court.

(3.) The petitioners/respondents 4 to 7 alone contested the execution petition by filing counter and additional counter that possession was already taken in the E.P. No. 45 of 1984 and as such the present execution petition in E.P.No. 133 of 2000 by the purchaser of the property is not maintainable as per law. Further, according to the petitioners/ respondents 4 to 7, they have been living in the suit property right from their birth and are in peaceful possession and enjoyment of the property and so, the first respondent/petitioner is not entitled to take delivery of the property. The father of the petitioners 4 to 7, Malayan, who was the defendant in the suit, was also born in the same property. Malayan died on 20.10.1997 during the pendency of the appeal in this Court and the decree has been obtained without impleading legal heirs in the appeal. The suit was filed in the year 1981-by one Adhilakshmi Ammal alias Poubathiammal represented by her son Ukkaravelu. After appeal in this Court, the first respondent herein obtained sale deed dated 18.11.1985 in his favour and he was impleaded as a party in the first appeal only on 7.3.1996 as per order in C.M.P.No.1775 of 1996. It has been recorded in paper that Ukkaravelu took delivery of possession of the property though in fact he has not taken delivery of the property and enjoyed the same. The first respondent/petitioner was not a party in O.S.No.338 of 1981 and so, he cannot file execution petition on the basis of the decree. The sale deed executed during the pendency of the proceedings is invalid under law. The petitioners/respondents 4 to 7 were not parties in the earlier proceedings. In the additional counter, the petitioners/respondents 4 to 7 have also stated that the 2nd respond- ent/3rd respondent Mangai is not the wife of Malayan and the third respondent/8th respondent Murthi is not the son born to Malayan and as such, they are not the legal heirs of Malayan. The suit in O.S.No.338 of 1981 was decreed on 26.9.1983 and the case was conducted by Ukkaravelu, the son and legal representative of the deceased Adhilakshmi Ammal alias Poubathiammal and he also filed E.P.No. 45 ,of 1984 and taken possession of the said property on 10.7.1984 through Court and the same was also recorded by the Principal Sub Court, Pondichery on 13.7.1984 and the C.P. No. 43 of 1984 was also terminated and Malayan did not vacate the property and he continued to be in possession of the same. In the sale deed dated 18.11.1985 executed by Ukkavavelu in favour of the first respondent Arikrishnan, it is recited that the possession was delivered to him on the same date and so, the first respondent Arikrishnan has no right or locus standi to file the second E.P.No. 133 of 2000 on the same decree in respect of which E.P. 45 of 1984 was already filed and delivery was already recorded. Since the C.P. 133 of 2000 has been filed after delivery of possession of the property through Court which was recorded on 13.7.1984 and also beyond 15 years, it is not maintainable the C.P. No. 133 of 2000 is also barred by time. If the first respondent/petitioner has got any right, he can seek his remedy only by way of separate suit.