K PANEENDRA Vs. PREMA

JUDGEMENT

(1.) The petitioner/decree holder/plaintiff has filed this civil revision petition as against the Order dated 5.6.2009 in R.E.P. No. 17 of 2008 in O.S. No. 10 of 2007 passed by the Learned Sub-Judge, Hosur in dismissing the application filed by the revision petitioner under Order 21 Rule 11 of Civil Procedure Code.

(2.) The Executing Court, while passing orders in R.E.P. No. 17 of 2008, has inter alia opined that in regard to the petition mentioned property in E.P. No. 17 of 2008 there is a suit namely O.S. No. 9 of 2006 is pending before it and further, it has also observed that as to why O.S. No. 9 of 2006 and O.S. No. 10 of 2007 have not been conducted jointly for trial and if the Execution Petition No. 17 of 2008 is allowed, then the plaintiff in O.S. No. 9 of 2006 will face hardship and loss in regard to take possession of the property in question and if any order is passed in E.P. No. 17 of 2008 prior to the passing of a full fledged decree in O.S. No. 9 of 2006, there is a possibility of hardship being caused to both the parties and therefore, the prima facie case and balance of convenience is not in favour of the revision petitioner/decree holder and resultantly, dismissed the said petition without costs.

(3.) The learned counsel forthe revision petitioner/decree holder urges before this Court that the Executing Court has committed an error in dismissing the E.P. No. 17 of 2008 on its file, filed under Order 21 Rule 11 of Civil Procedure Code when admittedly the decree passed in O.S. No. 10 of 2007 has become final and conclusive and in fact, the Executing Court cannot go behind the tenor of decree. Added further, an Executing Court cannot traverse behind the decree passed in O.S. No. 10 of 2007 and it cannot pass any observation or verdict in regard to the fact of other pending suit in O.S. No. 9 of 2006 on its file which is pending between the third party and the judgment debtor and these aspects of the matter have not been appreciated by the Executing Court in a proper perspective which needs to be set at right by this Court sitting in revision and therefore prays for allowing this civil revision petition to prevent an aberration of justice.