V H PATEL PETITIONER Vs. P M PATEL

JUDGEMENT

(1.) THE revision petitioner is the petitioner in E.A.No.2258 of 1989 in E.P.No.1883 of 1988 in O.S.No.9220 of 1984 on the file of IX Assistant Judge, City Civil Court, Madras. THE respondent in this revision is the respondent in the above Execution Application, the decree holder/petitioner in the Execution petition and the plaintiff in the abovereferred to suit. THE revision petitioner's application in the abovementioned Execution Application was dismissed. THE prayer in that Application, which was filed under Section 47 of the Code of Civil procedure, is extracted herein:

(2.) A few facts have to be necessarily stated in this order before I venture to decide the correctness or otherwise of the order challenged in this revision. In this order the parties to the civil revision petition will hereafter be referred to as the plaintiff and the defendant respectively. It appears that the plaintiff has leased out a business premises called New Ashapuri Saw Mill its goodwill and the machineries of that business premises to the defendant. The machineries numbering eight are given in th e Schedule to the plaint. The monthly lease amount was fixed at Rs.700 and the lease commenced from 19.3.1979 and it came to an end by efflux of time on 18.3.1984. It further appears that the plaintiff's wife by name Mrs.Nirmala Patel was owning the land and the zinc sheet shed in the property where the above referred to saw mill with the machineries were there. The machineries are admittedly imbedded in the earth. There was a separate agreement to tenancy between the defendant in the suit and the plaintiff's wife in respect of the property owned by her.

(3.) UNDER these circumstances, the only question that falls for consideration, if I may say so precisely, is whether the plaintiff/decree holder could execute Clause (2) of the decree alone without first exhausting Clause (1) of the decree and if he can do so, then the order under challenge has to be necessarily sustained. But if the answer is in the negative, then the defendant must succeed. The decree in this case is in the nature of the decree that could be passed under Order 20, Rule 10 of Code of Civil Procedure. No other provision in the Code of Civil procedure appears to be an appropriate provision to be taken into account in deciding the nature of the decree in this case. Order 20, Rule 10 of the Code of Civil Procedure enables the Court to pass the following money decree: