CHINNAMMAL @ SUBBATHAL Vs. R.KRISHNAN

JUDGEMENT

(1.) This Civil Revision Petition is filed by the third parties to the suit, who are legal heirs of the first defendant in the suit against the order dated 18.06.2008, passed in E.P.No.72 of 2005 in O.S.No.247 of 1991, by the learned District Munsif, Pollachi.

(2.) The first respondent herein has filed a suit in O.S.No.247 of 1991, seeking relief of declaration of title and for permanent injunction and also for recovery of possession of 17 cents and after trial, the suit was dismissed. Hence, the plaintiffs therein have filed an appeal in A.S.No.140 of 1994, which was allowed on 14.06.1996. Thereafter, the decree holder viz., Krishnan filed a petition in E.P.No.72 of 2005, against the deceased/first respondent viz., Subbaiah and his legal heirs stating that Subbaiah died after the decree granted by the Lower Appellate Court and in the said EP filed under order Order XXI Rule XXXV for delivery of possession, these petitioners are ordered to be included as legal representatives of the deceased/first defendant, viz., the legal heirs of the first judgment debtor and also ordered for delivery of possession by the learned District Munsif, Pollachi. As against the said order, they have preferred this Civil Revision Petition.

(3.) The learned counsel for the revision petitioners/third parties would state that the first defendant Subbaiah Gounder died on 20.03.1996 during the pendency of the appeal in A.S.No.140 of 1994 and hence, the judgment passed in A.S.No.140 of 1994 on 14.06.1996, against the dead person, being a decree against the dead person, the same is null and void and hence, he seeks to set aside the order passed in the execution proceedings. It is also brought to the notice of this Court that the first respondent herein after obtained the ex-parte decree as early as on 14.06.1996, waited for about nine years for filing the execution petition and filed E.P.No.75 of 2005, on 13.02.2005 i.e., nearly after nine years of pending decree. The learned counsel also submitted that parties are living as neighborhood.