S RAJENDRAN Vs. ARULMIGHU KAPALEESWARAR DEVASTHNAM MYLAPORE MADRAS

JUDGEMENT

(1.) THIS is an atrocious case and one of the several unfortunate instances where the observation of the Privy Council and the supreme Court, that in India the troubles for the decree- holder commence after the decree would aptly apply.

(2.) THE first respondent herein filed suit in O. S. No. 8137 of 1978 against the second respondent herein and obtained an ex parte decree on 7. 1. 1980 THE decree was put into execution in E. P. No. 635 of 1984. THE revision petitioner obstructed execution contending that he was in occupation of the property under the authority of one Venkataramana. who according to him. was the successful bidder for lease of the suit property. THE first respondent/decree-holder filed E. A. No. 4149 of 1984 in E. P. No, 635 of 1984 for removal of obstruction against him. This E. A. was dismissed as the main execution petition itself was not pressed. THE decree-holder filed E. P. No. 3400 of 1989 against the second respondent/judgment-debtor. THE revision petitioner was impleaded in the above E. P. He contended that the earlier execution petition, viz. E. P. No. 635 of 1984 having been dismissed as also the obstruction petition E. A. No. 4149of 1984 this E. P. had also to be dismissed. THE Executing Court by order dated 22. 12. 1994 rejected the obstruction raised by the revision petitioner and directed delivery before 27. 2. 1995. As against this order the present civil revision petition has been filed.

(3.) THE question is whether the Executing Court had exceeded its jurisdiction in ordering execution against a person not a party to the E, P. It has been held in Dakshinamoorthy v. Padmavathy Ammal, 1990 (1)M. L. J. 179 that in a case where the obstructor himself seeks direction from court for reception of his objection memo and acquiesces participating in the enquiry it is not open to him to complain later on that the procedure adopted was wrong. In the instant case the revision petitioner after being impleaded participated in the enquiry and let in oral and documentary evidence. It does not lie in his mouth therefore to contend that the procedure adopted was wrong. It must be deemed that he had waived any objection though he could have raised earlier as against the procedure adopted. THE order of the Executing Court cannot therefore be found fault with on this score.