G RAJENDRAN Vs. P C RAMALINGAM

JUDGEMENT

(1.) THE 1st defendant-judgment-debtor has filed this civil revision petition against the order in E. P. No. 60 of 1993, allowing the said execution petition filed by the decree-holder-respondent for issue of warrant for delivery of possession of the suit property, pursuant to the partition final decree passed on 29. 4. 1992 in O. S. No. 576 of 1983.

(2.) THE only contention of the learned counsel for the petitioner is that the execution petition itself is not maintainable in view of the following facts: On 25. 6. 1992 itself the decree-holder filed Ex. B-1 memo in the suit, praying for recording full satisfaction of the decree on the footing that the decree-holder had taken possession as per the final decree, outside court. Further pursuant to the said memo, on 30. 6. 1992 the court also recorded full satisfaction accordingly. THErefore, according to the said counsel for petitioner, the present E. P. No. 60 of 1993 filed on 1. 2. 1993 is not maintainable. THE learned counsel also relies on the decisions in Kunhanan v. Mamma Beary, A. I. R. 1961 S. C. 137 and Ramaganesan v. Rajah Ayyar, (1963)2 m. L. J. 162:a. I. R. 1964 Mad. 53: 76 L. W. 414: I. L. R. (1963) Mad. 911 (F. B. ).

(3.) EVEN in Kunhanan v. Mammu Beary, A. I. R. 1961 S. C. 137, it was observed thus: "how under 0. 21, Rule 35, a person in possession and bound by the decree has to be removed only if necessary, that it to say, if necessary to give the decree-holder the possession he is entitled to and asks for. It would not be necessary to remove the person in possession if the decree-holder does not want such removal. It is open to the decree-holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that then he cannot later any that he has not been given that possession to which he was entitled under the law. This is what happened in this case. " So, the said Supreme Court case is distinguishable from the facts of the present case, as explained above. Likewise in K. Ramalingam v. K. N. K. Reddi, A. I. R. 1974 Mad. 325: (1974)1 M. L. J. 142:87 L. W. 63, also the facts were different from the Supreme Court case and that is why the said a. I. R. 1974 Mad. 325 also observed, after referring to the said Supreme Court decision, thus: "from the above stated Supreme Court decision it is clear that if the decree-holder is satisfied with alleged delivery of possession, whether physical or symbolical, he cannot on a subsequent date ask for actual possession by filing a second execution petition'subsequent execution petition can be entertained only in cases where there was no legal, complete and effective delivery of possession on the earlier occasion. "