GNANASEKARAN Vs. BALASUBRAMANIAN

JUDGEMENT

(1.) This Civil Revision Petition has been filed as against the fair and decreetal order dtd. 8/10/2018 passed in E.A.No.25 of 2012 in E.P.No.23 of 2011 in O.S.No.386 of 2000 on the file of the District Munsifcum-Judicial Magistrate, Kattumannarkoil, thereby dismissing the petition filed under Sec. 47 of CPC.

(2.) The petitioner is the defendant and respondents are the plaintiffs. The respondents filed a suit for declaration, recovery of possession and damages. In the said suit, the petitioner remained absent and he was set ex-parte. The Trial Court passed ex-parte decree by a Judgment and Decree dtd. 21/8/2002. In order to execute the said decree, the respondents filed execution petition in E.P.No.23 of 2011. The petitioner filed a counter and also filed an application under Sec. 47 of CPC to set aside the decree passed in O.S.No.386 of 2000. It was dismissed and aggrieved by the same the present Civil Revision Petition.

(3.) The learned counsel appearing for the petitioner would submit that the petition under Sec. 47 of CPC can be filed at any stage. Therefore, the Trial Court ought not to have dismissed the petition on the ground that it was filed four months after receipt of the notice. Admittedly, the sale deed executed by the mother of the respondents in favour of the petitioner was not challenged by the respondents and no relief sought for cancellation of the said sale deed. Therefore, the decree for declaration, recovery of possession alone is not valid in law. When the property of the minor is sold by his mother he can file a suit within a period of three years after attaining majority to set aside the sale and for other reliefs. Therefore, without setting aside the sale deed, no decree for possession could be granted as the sale is voidable. Therefore, the Execution Court cannot execute the decree.