SALAI SIVAPRAKASAM MINOR Vs. BANGARAMMA

JUDGEMENT

(1.) ONE Salai Sivaprakasam, minor represented by his father and natural guardian R.Murugamalai, who is the obstructor is the appellant in the, above applications. The 1st respondent is the decree-holder and respondents 2 and 3 are the judgment-debtors in C.S.No.145 of 1985. The obstructor has filed an application in Appln.No.3314 of 1994 to set aside the order dated 13.6.1994 in E.P.No.49 of the 1992 in C.S.No. 145 of 1985 made by the learned Master of this Court. Application No.3315 of 1994 is again filed by the obstructor against the very same respondents for stay of the operation of the order dated 13.6.1994 in E.P.No.49 of 1992.

(2.) IT will not be out of place to mention that the 3rd respondent herein R.Murugamalai is the father of the minor appellant herein. An affidavit has been filed by the said 3rd respondent R.Murugamalai in the above two applications. The decree-holder after obtaining the decree in the above suit filed execution proceedings. The judgment-debtors filed Application No.2221 of 1992 for a declaration that the decree is a nullity and the E.P. is liable to be dismissed. To this application the decree-holder filed a counter. The learned Master in his detailed order dated 30.4.1993 rejected the objections raised by the judgment-debtors and answered the points in favour of the decree-holder holding that the decree-holder is entitled to execute the decree for delivery of possession and the decree is not liable to be set aside. The learned Master has categorically found that there is no dispute or confusion regarding the identity of the property, and that there is no discrepancy in the description and that the discrepancy pointed out that the property in respect of which decree was granted is not the property for which the execution is levied. Consequently he rejected the objection raised on behalf of the judgment-debtors and held that the decree is executable. Thus it has been held that the property in question is capable of being identified, located and delivered.

(3.) A common counter-affidavit has been filed by R.Murugamalai, the 3rd respondent in Application No.3314 of 1994 (one of the judgment-debtor) In the affidavit also refers to a letter of obstruction to the bailiffs stating that his minor son Salai Sivaprakasam has not only claimed a vested right in the property bearing Door No.9, N.N.Garden 6th Street, Old Washermanpet, Madras-21, but has also filed a suit in C.S.1437 of 1992 to declare his right and the same is pending on the file of this Court. It is also stated that the obstructions raised by Salai Sivaprakasam claiming independent right, title and interest in their property stands unchallenged and that the deeree-holder has not filed any application for removal of obstruction and to execute the warrant after removing the obstructor. Hence he contended that no warrant can be executed without proper adjudication of the claim made by the obstructor Salai Sivaprakasam.