SARGUNAM Vs. DURAISAMY

JUDGEMENT

(1.) THIS revision has been preferred by the Decree Holder and respondent in E.A.No.18 of 2000 in E.P.No.1452 of 1997 in O.S.No. 5394 of 1989, as against allowing the said execution application filed under Section 47 of Code of Civil Procedure by the respondent herein, praying to dismiss the E.P.No.1452 of 1997 and to declare that the decree dated 13.01.1999 passed in O.S.No.5394of 1989 as null and void.

(2.) THE case in brief is as follows: THE petitioner herein filed O.S.No.5394 of 1989 for the relief of declaration, mandatory injunction and for a permanent injunction on the file of the VIII Assistant City Civil Judge, Chennai and obtained an ex parte decree on 13.01.1992. THE petitioner/plaintiff filed E.P.No.1452 of 1997 for execution of the said ex parte decree before the X City Civil Judge, Chennai. At this juncture, the judgment debtor/defendant has filed E.A.No.18 of 2000 in E.P.No.1452 of 1997. THE learned X Assistant City Civil Court, Judge, after hearing both sides, allowed the said execution application. Aggrieved over the said order, the petitioner/decree holder has come forward with the present civil revision petition.

(3.) HEARD learned counsel for the petitioner as well as the respondent. From a perusal of the order and the averments contained in the typed set of papers, it is clear that the revision petitioner/decree holder has obtained an ex parte decree against the respondent/judgement debtor. According to the defendant such a decree had been obtained by suppressing the material and vital facts. According to him even the description of suit property has not been described properly. The plaintiff did not acquire exclusive easementary right and therefore the decree is unenforceable. The suit is bad for misjonider of necessary parties as there are other persons enjoying the same right. According to the learned counsel for the respondent, the E.P., is hit by Section 34 of the Specific Relief Act and hence the decree cannot be enforced under Article 135 of the Limitation Act, 1963, 1963 which prescribes that a petition has to be filed within a period of three years for the execution of mandatory injunction decree. It is also alleged by the counsel that the plaintiff has got an alternative pathway to reach his property.