R RADHA Vs. B SARASWATHY

JUDGEMENT

(1.) THE petitioner has preferred this Civil Revision Petition against the order passed by the X Assistant Judge, City Civil Court, Madras in E. A. No. 138 of 1996 in E. P. No. 2022 of 1985 in O. S. No. 4683 of 1982 dated 25. 11. 1997.

(2.) THE respondent/decree holder obtained an exparte decree dated 9. 11. 1982 against the petitioner herein in O. S. No. 4683 of 1982 for specific performance of an agreement of sale and proceeded to execute the decree in E. P. No. 2022 of 1985. The executing court having considered the rival contentions of the parties ordered delivery of the property. Since the warrant was returned on account of obstruction, the respondent filed applications in E. A. No. 3675 of 1985 for removable of superstructure put up by the obstructors and delivery of possession, E. A. No. 3676 of 1985 for police aid and E. A. No. 3677 of 1985 for direction to break open the lock. Afterwards, as per the orders of the executing court, the property was delivered 6. 9. 1985 after removal of the superstructure with police aid and the petition was closed.

(3.) SUBSEQUENTLY, the respondent/decree holder filed the application in E. A. No. 1684 of 1994 for delivery of possession of the property for the second time on the ground that the revision petitioner/judgment debtor trespassed into the suit property subsequent to the delivery effected through Court as referred supra. The said application was contested by the petitioner herein. However, the executing Court passed an order dated 22. 8. 1995 to deliver the property as per decree on or before 1. 11. 1995. Meanwhile, the petitioner herein/judgment debtor filed the application in E. A. No. 138 of 1996 under Section 47 r/w 94 (3) and 151 of the Civil Procedure Code to declare that the exparte decree dated 9. 11. 1982 passed in the said suit is a nullity and therefore non est in law, unenforceable and unexecutable and to dismiss the E. P. No. 2022 of 1985 as not maintainable in law. After elaborate enquiry, on the basis of the arguments put forth on either side, the learned X Assistant Judge dismissed the said application on 25. 11. 1997. Hence, the revision.