HEMA AND ORS. Vs. KAVERIAMMAL AND ORS.

JUDGEMENT

(1.) The learned Additional District Munsif, Madurai Town, directed delivery of the property to the respondents after dispossessing the petitioners. The Court Amin executed the delivery order. When the High Court set aside the order passed by the Executing Court, the petitioners wanted restitution. The application was dismissed by the learned Executing Judge by pleading helplessness primarily on the ground that delivery was not recorded, notwithstanding the fact that the actual delivery was given to the respondents. Heard the learned counsel for the petitioners and the learned counsel for the respondents.

(2.) The respondents filed a suit in O.S. No. 968 of 2005 against the petitioners. The Trial Court decreed the suit. Thereafter, the respondents filed Execution Petition in E.P. No. 111 of 2011 to execute the decree.

(3.) The Executing Court passed an ex parte delivery order on 10 October, 2012. The delivery order was executed very promptly by the Court Amin. The petitioners were dispossessed and the property was handed over to the respondents. The delivery order passed by the Executing Court on 10 October, 2012 was set aside by the High Court in C.R.P. No. 385 of 2013. The petitioners immediately thereafter filed an application in E.A. No. 92 of 2013 to put them in possession by way of restitution. The learned Executing Judge rejected the application primarily on two grounds. The first ground relates to the fact that delivery though effected was not recorded. The other ground relates to the non-application of Section 144 of Code of Civil Procedure. According to the learned Judge, only when a decree passed in a suit or a decreetal order passed in an application is set aside after execution, Section 144 of Code of Civil Procedure would come into play.