N MOHAN Vs. EJAZ KHILJI

JUDGEMENT

(1.) The present revision is filed by the judgment debtors against the order dismissing the petition filed under Section 47 of CPC in E.A.No.4766 of 2011 in E.P.No.1298 of 2009 dated 05.09.2012 on the file of the City Civil Court (X Assistant Judge) Chennai.

(2.) The brief facts of the case of the petitioners is that the respondent filed a suit in O.S.No.5519 of 1983 on the file of the City Civil Court (X Assistant Judge) Chennai for partition and separate possession of 3/4th share in the suit property. Originally the suit was decreed declaring the 1/4th share and subsequently it was modified into 2/3rd share. In pursuant to that final decree was passed on 21.01.2003 in favour of the respondent and consequently to take delivery of the property the respondent has filed E.P.No.1298 of 2009. In the said E.P the petitioners filed a petition in E.A.No.4767 of 2011 raising objection with regard to the executability of decree stating that the respondent is entitled to claim share over the super structure alone as the mother of the petitioners was a recognized tenant under the Trust by virtue of the tenancy created by the Official Trustee of the Trust appointed by this Court. As the land belongs to the Trust, the mother of petitioners is the owner of building and she is entitled to purchase the land U/S 9 of City Protection Act and she also filed a petition seeking protection under the Act. However her entitlement was disputed by the Trust and ultimately the petition was dismissed. Thus it is proved beyond doubt that the mother of the petitioners was the authorized tenant in respect of site and as the decree is in executable by trial, in so for the superstructure alone.

(3.) The brief case of the Respondent is that either the preliminary decree or the final decree was challenged by the Petitioners and the same became final hence the executability of the decree cannot be challenged at this stage as it is settled principle of law that the Executing Court cannot go beyond the decree and it must see that the decree passed by the competent Court shall be executed.