DUNGARCHAND NARASINGJI Vs. CHENNAI SRI EKAMBARESWARAR DEVASTHANAM

JUDGEMENT

(1.) THESE three appeals arise in the execution stage. A decree was passed against the appellant, who was the defendant, in C. S. No. 420 of 1979. Both the plaintiff and the defendant filed appeals, which were numbered as O. S. A. Nos. 106 of 1986 and 118 of 1987. The appellate Bench modified the decree of the learned single Judge. The relevant clause in the appellate decree reads as follows:'that the Appellant in O. S. A. No. 118 of 1987 (defendant) be and is hereby directed to hand over possession of the entire schedule superstructure to the appellant (in O. S. A. No. 106 of 1986 (plaintiff)' it is this clause of the decree, which is sought to be executed by the decree-holder in E. P. No. 167 of 1991. The appellant, on getting notice of the execution petition, filed Application No. 3377 of 1992 for dismissing the execution petition under Sec. 47 of the Code of Civil Procedure. The main objection raised in the said application is that there was a gift deed after the decree of the trial court during the pendency of the appeal in favour of the plaintiff by the defendant and under the gift deed, the entire property has been conveyed to the plaintiff: The decree directing delivery of possession in favour of the plaintiff is, therefore, a nullity according to the appellant. Another contention raised in the said application is that the provisions of o. 39, Rule 15 of the Original Side Rules have not been complied with and the execution petition has to be dismissed under O. 39, Rule 11, Original Side rules. The appellant also filed Application No. 4471 of 1992 for an order directing the return for amendment or rejection of the execution petition filed by the decree-holder. In that application the ground mentioned was that 0. 39, rule 15 of the Original Side Rules had not been complied with. The Master passed an order on 30. 10. 1992, after hearing both sides, dismissing the application, holding that there was sufficient compliance with the provisions of O. 39, Rule 15, Original Side Rules. Against that, the appellant preferred an appeal before the learned single Judge which was numbered as Application no. 1244 of 1992.

(2.) DURING the pendency of that application, the appellant filed Application No. 5780 of 1993 for an order to accept an additional affidavit from him. In the additional affidavit, the appellant sought to give particulars of the persons who were in occupation of the suit property as his tenants. Both the applications were heard by a learned single Judge, who passed an Order on 15. 12. 1993 dismissing them O. S. A. Nos. 266 and 267 of 1994 are against the said order.

(3.) IF that test is applied in this case, it can be seen that the Rule is not mandatory and it is only directory. The object of Rule 15 is to make it convenient for the parties as well as the court. When the decree is one for delivery of possession as against the judgment-debtor, it will be very convenient if the decree-holder is able to state that the person in actual possession is not the judgment-debtor and somebody else who is bound by the decree or who is not bound by the decree. The failure to mention the particulars relating to the same will not invalidate the execution petition. In the present case, the appellant did not choose to disclose the relevant particulars, even when he filed the two applications viz. , Application No. 3377 of 1992 and Application No. 4471 of 1992. It was only much later after the master passed the order dismissing Application No. 4471 of 1992, the appellant filed Application No. 5780 of 1993 for accepting the additional affidavit in which the names of the tenants were listed. Even from that list it is seen that the persons mentioned therein are all tenants of the appellant. Naturally, they are bound by the decree. There is no ambiguity whatever in the direction contained in the decree that the appellant is bound to give possession. Whether he is in actual possession or had inducted somebody else in possession, he is bound to see that the decree-holder is put in possession of the property.