RAJASEKAR Vs. DURAIKANNU

JUDGEMENT

(1.) The Civil Revision Petition is filed challenging the Order passed by the Executing Court allowing the Application filed by the Respondent/Decree holder for removal of superstructure found in the subject matter of the Suit and for disconnection of the electricity.

(2.) The Respondents herein filed a Suit for recovery of possession against the Petitioner, the Suit was dismissed by the Trial Court and the same was confirmed by the First Appellate Court. The Respondents filed S.A. No.446 of 2009 and the same was allowed by this Court by granting Decree for possession over the 'A' Schedule property. Thereafter, the said Decree was put in to execution. The Executing Court ordered delivery of the property. The Senior Bailiff, who went to the property to effect delivery found certain superstructure in the Suit property and hence returned warrant seeking Police help for removal of superstructure and for disconnection of electricity service connection.

(3.) Therefore, the Petitioner filed instant application seeking removal of superstructure and to order disconnection of the electricity. The Suit 'A' Schedule property was described as a vacant site at the time of filing of the Suit. It appears the Petitioner herein put up certain superstructure pendente lite. The Executing Court by relying on Order 21, Rule 35(3) of C.P.C., held that the Executing Court has got incidental power to pass necessary orders for effective enforcement of the Decree for Partition. The said position was very well explained in Madasami v. Govindaraj, 2007 (1) CTC 217. The relevant observation of this Court reads as follows: