S PAKKIARAJ Vs. S N KULASEKARAN

JUDGEMENT

(1.) THIS revision petition is directed against the order directing delivery of possession of the suit property without giving notice to the petitioner/judgment-debtor.

(2.) THE short facts are: Respondent has filed the suit in o. S. No. 1311 of 1981 on the file of District Munsifs Court , Poonamallee, for declaration, possession and permanent injunction. After an elaborate trial, the learned District Munsif has decreed the suit on 29. 12. 1988. Aggrieved by the same, the petitioner has filed an appeal and the same was dismissed on 21. 9. 1989. THEreafter, the respondent has filed E. P. No. 181 of 1991 in the trial court and delivery was ordered on 5. 8. 1991 without notice to the petitioner. Aggrieved by the said order, the petitioner has preferred this revision petition.

(3.) FROM the above rulings, the following principles can be deduced: ' ' (i) In an execution petition, if notice is required under the provisions of 0. 21, Rule 22, C. P. C. , and if notice was not issued but execution was proceeded with, the executing court could not be regarded to have assumed jurisdiction legally and validly without a show-cause notice having been first served upon the judgment-debtor. (ii) When a decree is taken in appeal to a higher court, the decree passed in appeal supersedes that of the court below and becomes the decree in the suit itself and the period of limitation for execution would run from the date of that decree of the appellate court' '.