KARIKADAI BALU @ BALUCHAMY Vs. H M D KHAN

JUDGEMENT

(1.) The respondent herein is the plaintiff in O.S.No.19 of 2002 on the file of the Subordinate Court, Madurai and in the suit, the plaintiff sought for declaration among various other reliefs. An exparte decree was passed on 04.04.2002 and subsequently, the plaintiff had filed an execution petition in E.P.No.65 of 2004 for due execution of the decree granted in his favour. At that juncture, the revision petitioner, claiming to be a third party to the suit had filed E.A.Nos.693 and 694 of 2008 in E.P.No.65 of 2004 before the learned I Additional Sub Court, Madurai for declaration as well as stay of execution proceedings respectively. Both the applications were dismissed for default and thereafter, on coming to know of the dismissal of those application, the revision petitioner has filed E.A.Nos.79 and 80 of 2016 for condonation of delay of 210 day in restoration of E.A.Nos.693 and 694 of 2008. Since no proper reasons were assigned for the delay, learned II Additional Sub Judge, Madurai has dismissed both the applications and aggrieved by the same, the petitioner is before this Court.

(2.) It was the case of the revision petitioner that he had purchased the suit schedule property in the year 1972 from one Raman Servai and constructed a house, besides doing mutton stall business in the property for quite number of years. A suit in O.S.No.255 of 1980 was instituted against him by one Balakrishnan Aiyar, which was decreed in favour of the said Balakrishnan and went upto this Court and ended in dismissal against the petitioner. It was the further case of the petitioner that though the said Balakrishnan won the battle, he did not file any execution petition, thereby he continued to reside in the suit schedule property for the last 36 years, namely more than the statutory period prescribed for adverse possession and enjoyment of the suit property.

(3.) The revision petitioner stated that while that being the case, the plaintiff / respondent herein had filed a suit in O.S.No.19 of 2002 and obtained an exparte decree in his favour, suppressing the earlier judgment and decree passed in O.S.No.255 of 1980 and such factum was known to the petitioner only after filing of E.P.No.65 of 2004 by the respondent herein. When the defendants in O.S.No.19 of 2002 had no title or right over the property, the order of execution passed against them has become invalid and the said order will not in any way bind upon the revision petitioner herein, as the delivery order passed in E.P.65 of 2004 can merely be construed as a paper delivery.