CHINNASAMY Vs. PERIYASAMY

JUDGEMENT

(1.) Challenge in this second appeal is made to the judgment and decree dtd. 17/12/2004 passed in A.S. No. 34 of 2004 on the file of the subordinate court, Kallakurichi, confirming the fair order and decree dtd. 4/11/2003 passed in E.A. No. 822 of 2000 in E.P. 3 of 2000 in O.S. No. 805 of 1992 on the file of the District Munsif Court, Kallakurichi.

(2.) For the sake of convenience, parties are referred to as per their rankings in the trial court.

(3.) The petitioner has preferred the claim application under Order 21 Rule 58 of the Code of Civil Procedure and as per his case, the first respondent is the decree holder in O.S. No. 805 of 1992 and the second respondent is the judgment debtor and the first respondent had initiated the Execution Proceedings against the second respondent for recovering the suit amount by initiating action in respect of the petition schedule property by attaching and bringing the same for sale and it is stated that the petition schedule property is the self acquired property of the petitioner and he had purchased the western half of the said property from Marimuthu Padayachi for Rs.70.00 by way of an oral sale and constructed a hut and residing in it. Later on, he had purchased the eastern half of the petition schedule property from one Palanimuthu Padayachi by way of the sale deed dtd. 12/12/1955 and constructed a terraced house and residing in the same and thus, it is only the petitioner who has title, possession and enjoyment of the petition schedule property and he is also paying house tax in respect of the same and also has prescribed title to the same by way of adverse possession on account of his long and continuous enjoyment of the same beyond the statutory period and the second respondent has no title or right over the same and therefore, the first respondent/decree holder is not entitled to proceed against the petition schedule property belonging to the petitioner on the footing that the same belongs to the second respondent and accordingly it is stated that the petitioner has been necessitated to raise the attachment effected in respect of the petition schedule property and hence the petition.