KANDASAMY THIRUKOIL THIRUPORUR Vs. M SELVARAJ

JUDGEMENT

(1.) THE Civil Revision Petition is filed under Article 227 of the Constitution of India praying to set aside the order and decreetal order of the Trial Court in E.A.No,4459 of 2007 in E.P.No.1047 of 2006 in O.S.No,8417 of 1994 dated 31.01.2008 passed by the IXth Assistant Judge, Civil Court and to allow the Revision Petition by dismissing the application filed under Section 47 of the Civil Procedure Code.)THE Petitioner / Plaintiff / Decree Holder has filed the Civil Revision Petition as against the order dated 31.01.2008 in E.A.No,4459 of 2007 in E.P.No.1047 of 2006 in O.S.No,8417 of 1994 passed by the Learned IXth Assistant City Judge, City Civil Court, Chennai.

(2.) THE Executing Court while passing orders in E.A.No,4459 of 2007 on 31.01.2008 in E.P.No,4459 of 2007 in O.S.No,8417 of 1994 has interalia opined that '... it is also argued that when the decree is silent about superstructure under caption of five persons without ordering demolition of superstructure by the order of the decree it is found as argued by the petitioner that the decree at present as available is found to be one which is not executable. Hence, this petition under Section 47 of Civil Procedure Code is entertained at this stage by holding a view that the decree is not executable without the order for removal of superstructure indeed. Hence, this petition stands allowed as prayed for with a finding that the decree is not executable at present without the proper relief in the decree as the property is with pacca superstructure' and resultantly allowed the application without costs.

(3.) HE also relies on the decision in Duraisami Mudaliar v. Ramasami Chettiar and another 1979 TNLJ at page 9 at special page 11 wherein it is held as follows ... " In such a case, in the execution of the decree for possession, the Executing Court can order the removal of demolition of the construction made during the pendency of the suit or after the decree. Such was also the view expressed in A.I.R.1934 Lah.97 and A.I.R.1970 All. 648".