THULUVA VELLALAR SANGAM Vs. R.MANTHRASALAM

JUDGEMENT

(1.) The petitioner/Sangam has filed this Civil Revision Petition questioning the correctness of the order dated 02.12.2005 passed in E.A. No. 556 of 2003 in E.P. No. 405 of 1984 in O.S. No. 497 of 1970 on the file of the learned Principal District Munsif at Coimbatore. By the order dated 02.12.2005, the court below dismissed the E.A. No. 556 of 2003 filed by the petitioner for restoration of E.P. No. 405 of 1985, which was dismissed on 17.09.2003.

(2.) The learned Senior counsel for the revision petitioner would contend that the revision petitioner is the decree holder in the suit in O.S. No. 497 of 1970 which was filed for recovery of possession. The suit was decreed on 19.01.1972 against which appeal was preferred by the defendants/judgment debtors which culminated in Second appeal before this Court and it was dismissed on 25.01.1980. Thereafter, to execute the decree, the revision petitioner has filed E.P. No. 405 of 1984. During the pendency of the Execution Petition, some of the defendants died and therefore their legal heirs were brought on record. Ultimately, delivery was ordered by the trial court on 12.03.1986 and delivery was directed to be taken on or before 24.04.1986. As against this order, there was no appeal preferred by the judgment debtors. However, the revision petitioner/decree holder could not take delivery of possession as ordered by the court below. Since possession was not taken for a long time, as per the advise of the subsequent counsel for the revision petitioner/sangam, E.A. No. 306 of 2002 was filed on 10.07.2002 on the ground that the President of the Sangam died. In fact, there was no necessity to file such a petition on the ground that the President of the Sangam died. In any event, this application in E.A. No. 306 of 2002 was dismissed for default on 22.07.2002. Thereafter, another application in E.A. No. 80 of 2003 was filed on 06.02.2003 to restore E.A. No. 306 of 2002. Even this application was also dismissed for default on 17.09.2003. Consequent to this, the E.P. No. 405 of 1984 itself was dismissed on the same day i.e., 17.09.2003, which according to the learned senior counsel for the petitioner was without notice. Therefore, the present application in E.A. No. 556 of 2003 was filed by the petitioner. In the meanwhile, CRP No. 569 of 2003 was filed before this Court against the order dated 25.06.2002 made in E.A. No. 23 of 1999 only to be dismissed on 06.11.2003 as infructuous since the Execution Petition No. 405 of 1984 itself was dismissed.

(3.) The learned senior counsel for the petitioner would contend that the petitioner has blamed his counsel on record for having committed breach of trust. The petitioner also sent a notice to his counsel for which the counsel has issued a reply on 07.11.2003 denying the averments contained in the notice. It is his further contention that E.A. Nos. 345 and 346 of 1986 were filed by him for police aid and break open of the premises in question during March 1986 pursuant to the order passed for delivery of possession. Both the applications were however closed on 07th March 1996 on technical grounds without giving any reasons. Therefore, according to the learned senior counsel for the petitioner, the applications in E.A. Nos. 345 and 346 of 1986 are still pending and they cannot be construed to have been closed. It is further contended by the learned senior counsel for the petitioner that E.A. No. 306 of 2002 was unnecessarily filed at the advise of his counsel on record inasmuch as the death of the President of Sangam will not be a bar for continuing the suit proceedings. In any event, the petitioner has given reasons for allowing the present application, but without considering the same, the court below dismissed the application and it warrants interference by this Court.