M C GOPAL Vs. S GAJENDRA NAID

JUDGEMENT

(1.) AS against allowing the Execution Application filed by the first respondents/third party herein on the file of the Sub court, Poonamallee, by the learned District Judge, Chengalpattu, the appellants who are decree holders have filed the present Civil Miscellaneous Second Appeal.

(2.) THE brief facts of the case are as follows:-

(3.) LEARNED counsel for the appellants/decree holders contended that the the Execution Application filed by the appellants under Order 21 Rule 97 CPC is not maintainable on the facts and circumstances of the case. The learned District Judge has erred in going behind the decree granted in O.S.No:260 of 1981 and pronouncing the rights of the parties contrary to the said decree since the relief being specific performance, the reconveyance agreement cannot be split up. LEARNED counsel contended that the trial court has found that delivery of possession has been completed under Ex.P.5 and Dhandapani alone continues to be in possession. It is not correct to state that the decree in O.S.No:39 of 1983 will not bind the first respondent more so when the decree specifically says that the heirs of Chakrapani Naidu who had filed a suit for specific performance of reconveyance agreement for the entitlement of the property shall not interfere with the possession of Dhandapani Chettiar except in execution of their decree in O.S.No:260 of 1981. Further, the decree in O.S.No:135 of 1982 had not become final an the application to set aside the said ex parte decree has been filed by the third petitioner in I.A.No:1518 of 2000 and the same is pending.