A. ANUSUYA Vs. SANTHI SIVASAMY

JUDGEMENT

(1.) This civil revision petition is filed against the order made in unnumbered E.A. SR No. 10647 of 2013 filed by the petitioner under section 47 C.P.C. before the Execution Court in E.P. No. 4726 of 2012 in O.S. No. 603 of 1996 on the file of the X Assistant City Civil Court, Chennai. The petitioner herein as the defendant suffered a decree for recovery of possession in O.S. No. 603 of 1996. The said decree passed by the trial court has been confirmed by the Appellate Court in A.S. No. 565 of 2005 on 21.12.2006. Thereafter, a second appeal filed in S.A. No. 347 of 2007 by the petitioner came to be allowed and the matter was remitted to the First Appellate Court on 10.02.2011. Once again, the appeal in A.S. No. 565 of 2007, after remand, came to be dismissed on 28.08.2012. Thereafter, it is represented, that the petitioner had filed second appeal which is at the SR stage before this court. In the meantime, the respondent herein as a decree holder filed an execution petition in E.P. No. 4726 of 2012 wherein though in the schedule of the execution petition the property was shown correctly as the schedule of property as found in the decree, however at column No. 12 of the execution petition, the respondent has sought for delivery of vacant possession of a property bearing Door No. 4, Canal Feet road, Srinivasa Nagar, Koyambedu, Chennai 107. This according to the petitioner, gave him a cause of action to file Section 47 application before the Execution Court by contending that the property sought to be executed is not the same property as found in the decree passed by the trial court. Apart from raising such ground, the petitioner has also questioned the execution proceedings as time barred.

(2.) Therefore, when those grounds were raised by the petitioner, it is for the court below to consider the same and pass orders on merits and in accordance with law. However, the perusal of the order passed by the Court below shows that even before numbering the E.A., the same was dismissed by simply holding that the pleadings made in Section 47 C.P.C. was already decided by the trial court, the First Appellate Court and this Court. I failed to understand as to how such general finding could be rendered by the court below without traversing to the averments contained in the petition filed by the petitioner under section 47 C.P.C. At this juncture, I make myself clear that I am not expressing any view on the merits of section 47 application. However, I only say that when a petition is filed under section 47 C.P.C. by a party to the proceedings, it is for the Court to consider the same and decide it on merits, after giving due opportunity to the other side. In this case, the court below rejected the application even before numbering the same. Therefore, the order passed by the court below, in my considered view, cannot be sustained. Accordingly, the same is set aside and the matter is remitted back to the court below for considering the application filed by the petitioner under section 47 C.P.C. on merits and in accordance with law, of course, after giving adequate opportunity of hearing to both side. It is open to the respective parties to let in evidence in support of their respective claim. The court below will hear the submissions on either side and pass orders on merits and in accordance with law within a period of 30 days from the date of receipt of a copy of this order. The civil revision petition is disposed of. No costs. The connected miscellaneous petition is closed.