MANNAR MANNAN Vs. G. MANI

JUDGEMENT

(1.) This Civil Revision Petition is filed to set aside the fair and decretal order dated 02.11.2009 made in E.A. No. 6957 of 2006 in E.P. No. 1962 of 2006 in O.S. No. 4174 of 2001 on the file of the X Assistant City Civil Court, Chennai.

(2.) The petitioner/judgment debtor is the defendant and respondent/decree holder is the plaintiff in O.S. No. 4174 of 2003 on the file of the XIII Assistant City Civil Court, Chennai. The petitioner is the respondent and respondent is the petitioner in E.P. No. 1962 of 2006. The respondent filed the said suit for possession of the property under occupation of the petitioner. The said suit was decreed by the judgment and decree dated 13.02.2003. The respondent filed E.P. No. 1962 of 2006 against the petitioner to execute the decree. The petitioner filed E.A. No. 6957 of 2006 under section 47 of C.P.C alleging that respondent obtained decree fraudulently. According to the petitioner, he has purchased ?th undivided share of his paternal aunt, Krishnaveni. He filed suit for partition and prayed for dismissal of E.P. No. 1962 of 2006.

(3.) The respondent filed counter statement and contended that originally the property belonged to Annammal, grand mother of the petitioner and respondent. The said Annammal borrowed a sum of Rs. 2,500/- from Abdul Rahman Khan and his wife Rahmat Khatoon Bee by mortgaging the property. After the death of Annammal, the property was brought for sale to realise mortgage amount and respondent purchased the property by sale deed dated 17.05.1976, bearing document No. 719 of 1976. The petitioner was in possession of the portion of the property as a lessee. The release deed executed by Krishnaveni, paternal aunt of the petitioner and respondent is invalid as she has no right over the suit property. The release deed and preliminary decree are after decree in the mortgage suit and therefore, it is not binding on the respondent and prayed for dismissal of the application.