CHINNA KARUPPATHAL Vs. A D SUNDARA BAI

JUDGEMENT

(1.) THE revision petition/petitioner/second petitioner has projected this civil revision petition as against the order dated 28. 07. 2009 made in E. A. No. 255 of 2009 in E. A. No. 139 of 1962 in E. P. No. 134 of 1957 in O. S. No. 226 of 1946 passed by the II Additional Subordinate Judge, Coimbatore, in dismissing the application filed by the revision petitioner under Section 151 of Civil Procedure Code praying for an enquiry in E. A. No. 139 of 1962 filed under Section 47 of Civil procedure Code.

(2.) THE Executing Court while passing orders in E. A. No. 255/2009 has inter alia opined that,

(3.) THE core of contention put forward by the learned counsel for the revision petitioner is that the order of the Executing Court, in dismissing the e. A. No. 255 of 2009 is materially an irregular one and also contrary to law and the Executing Court, as a matter of fact has not appreciated of the simple fact that what was challenged before the Hon'ble Supreme Court of India is against the order of the Hon'ble High Court, Madras dated 26. 02. 1998 in C. R. P. Nos. 3162 to 3164 of 1992 which have been filed against E. A. No. 782 of 1989 in E. A. Nos. 1612 and 1613 of 1987 respectively and not against the application filed under section 47 of Civil Procedure Code, and the Hon'ble Supreme Court of India has merely dismissed the application filed for clarification without any discussion or expressing any opinion on the application filed under Section 47 of Civil procedure Code and further, that the order of the Hon'ble Supreme Court of India dated 23. 02. 2009 is not on merits, and moreover, while considering the applicability of Tamil Nadu Agriculturist Debt Act and Section 23 A of the said act, the Hon'ble Supreme Court of India have held that the persons are not entitled for the benefit of Section 23 A of the Act and in short there has been no reference in the applicability of Section 47 of Civil Procedure Code in the order passed by the Hon'ble Supreme Court and as such the Execution Court ought to have held the application under Section 47 of Civil Procedure Code is proper and maintainable in law and the trial Court has failed to see that earlier application under Section 47 of Civil Procedure Code have not been heard and it ought to have taken up the application E. a. No139 of 1962 filed under Section 47 of Civil Procedure Code and all the more the Executing Court has committed an error in holding that the order of the Hon'ble Supreme Court is final on the whole aspect and since, the Executing Court has not appreciated and adverted to the factual aspects of the matter in issue the order passed by it in E. A. No. 255 of 2009 suffers from material irregularity coupled with patent illegality which has resulted in the dismissal of the Execution Petition and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.