KESAVAN Vs. SEETHALAKSHMI

JUDGEMENT

(1.) COMMON allegations contained in the petitions filed by the Revision Petitioners under Section 47 of C.P.C. are as follows: The decree passed in O.S.No,485 of 1969 on the file of the District Munsif Court, Poonamallee, is in executable and unenforceable in law. It is also stated that the trial Court inherently lacked jurisdiction. The property sought to be delivered under the decree is shown as 30ft. X 20ft. and the said measurement does not show on which direction both the measurements are available. This part of decree is nebulous and the property cannot be identified. Item No,2 of the decree is shown as being the middle part of the North East portion. This actually measures something different from the measurement shown in the decree. Deceased Ponnammal did not have any right over the property owned by her husband Dilli Babu. Hence decree against Ponnammal is not binding on Dilli Babu. These claimants and the said Dilli Babu are not parties to the original Suit and the decree passed thereon is not binding on them. Hence the decree is non-est. The decree is in executable for want of proper boundaries for the small extent sought to be delivered under the above decree. Without proper boundaries, the decree holders cannot locate 600 Sq.ft. as per their own whims and fancies. Their claim of title as against the entire land was hit and lost by limitation. Hence it may be declared that the decree passed in O.S.No,485 of 1969 is not executable.

(2.) THE following are the common allegations found in the counter filed by the decree holders: THEse petitions are not maintainable. THE matter came up to the High Court in Second Appeal No.1000 of 1976 and the High Court had remanded the case to the trial Court for fresh disposal with certain directions. THE suit ended in favour of the plaintiffs and the appeal in A.S.No,25 of 1984 was dismissed by the Sub-Court, Poonamallee and thereafter no second appeal was preferred. Even though the claimants and others filed suits for partition and obtained preliminary decrees, they are only to protract the proceedings and they are not binding on these respondents. THE property has been described properly and could be identified easily. Ponnammal and Munusamy, defendants in the original Suit did not plead before the trial Court that they were in possession and enjoyment of property measuring 27ft. 300 ft. THEse petitions are vexatious and hence they have to be dismissed with costs.

(3.) MR. A. Thayappan, the learned counsel for the petitioner would contend that inasmuch as there had been specific plea in the written statement and the claimants and their ancestors have been in possession and enjoyment of various portions of land with different dimensions, not according to the plaint schedule, the decree passed in the original suit should have been held to be an in executable one and the order passed by the executing court does not stand.