1

IN THE COURT OF DISTRICT MUNSIF, TAMBARAM

On Monday, the 02nd day of August 2021

E.P.No.154 of 1993

1.G.Chandraiah (died)
2. Smt.G.Syamala (died)
3. G.Srinivasan
4. G.Govindaraj
5. Smt.G.Raghukumari
6. Smt. G.Banumathi
7. Smt.K.Amudeeswari
(DH 2 to 7 implead as legal heirs of deceased JD and amended as per order,
dated 04.02.2020 in E.A.24/2019)
(Amended as per order in E.A.No.30/2019 dated: 04.12.2019)
(DH 3 to 7 were recognised as the legal heirs of the deceased 2nd JD, who
were already on record as per order on memo)
(The D.Hs 2 to 7 recognised as the legal heirs of the deceased D.H. and
impleaded as per Or. in E.A.No.33 of 2007,dated 22.06.2007)

... Petitioners/Decree Holders

// Vs //
1. E.M.Kannappan
2. S.Gowri
3. Alamelu Ammal (died)
4. S.Purushothaman
5. Venkatalakshmi
6. E.G.Loganathan (died)
7. E.L.Balaraman
8. E.L.Santhanam
9. E.L.Doss
10. E.L. Rose Kutty (died)
11. L.Ragini
 .2.
(JDs. 7 to 10 are the legal heirs of the deceased 6th Judgment debtor as per
Or. in I.A.41/1993, dated 12.12.1994)
(11 JD. is the legal heir of the deceased 6th JD as per Or in E.A.25/1994
th

dated 12.12.1994)
(Amended as per order in E.A.No.28/2019 dated: 04.12.2019)

12. Ellammal
13. Minor Harihara Subramaian
14. Minor Hariprakash
Minors 13 and 14 represented by their
and next friend 12 JD Ellammal
… Respondents/Judgment Debtors

This petition coming before me on 30.03.2021 for final hearing in the

presence of Advocate M/s. M.K.Murali, for the Petitioners/Decree Holders

and Advocate M/s.Loganathan for Respondents/Judgment Debtors 1 to 14

and 12 to 14th Respondents/Judgment Debtors remained set ex­parte after

hearing the arguments of both sides and having stood over for consideration

till this day, this court delivers the following:­

ORDER

The petitioner has filed this petition under Order XXI Rule 35 of the

Civil Procedure Code praying for an order of delivery of the schedule

mentioned property to the Decree Holder.

The petitioner has filed this petition for delivery of possession of the

Petition schedule property. Notice issued to the Judgment debtor under

Order XXI Rule 35 to show cause why the decree should not be executed and
 .3.

the JD entered their appearance and filed their counter.

2.The averments stated in the counter of Respondent:­

The petition filed by the Petitioner/DH is not maintainable either in law

or on facts. The decree under execution in O.S.No.1658/1985 is inexecutable

and the suit has been filed against the dead person viz Alamelu Ammal (D3)

who died in November 1983 leaving behind 1 st respondent, 3 daughters and

without their presence as LR's the suit laid was improper and the decree is

inexecutable. So far as the respondents has concerned, K.Manika Muthaliyar

left the ordinary place of resident even as early as 1962 and abandoned the

family and he was deemed to have faced the civil death and no action of the

said K.Manika Muthaliyar shall behind the 1 st or 3rd defendants in

O.S.No.1658/1985. Any action taken by the said K.Manika Muthaliyar cannot

be taken advantage of by the petitioner. Further there cannot be any co­

relation with the schedule property in the sale deed dated 01.06.1960 and the

suit properties. The petitioner got the decree behind the back of the

respondents in O.S.No.683/1970 and got the order for delivery on 07.05.1993

in E.P.No.268/1973 in O.S. No. 683/1970. It is noticed from the averments

that delivery had even taken on 20.06.1973 even though it has not taken.

There was no notice served on person concerned and that the proceedings

referred to shall not behind the parties concerned. The decree

in O.S.No.683/1970 for possession of suit property will give room for the
 .4.

subsequent suit in O.S.No.1658/1985 for declaration and possession to

operate as resjudicata. The O.S.No.1658/1985 inexecutable. There is no

averment to the effect when the parties trespassed into the property. The

respective parties are remaining in the property in secured possession from

1960 without the intervention. In the suit in O.S.No.1658/1985 one

Loganathan 6th defendant has been died on 08.04.1986 during the pendency

of the suit and the decree was passed on 09.04.1987 has against the dead

person. The petitioner has omitted to take steps to implead the LR's of 6 th

defendant in the suit. Hence, the decree against 6 th defendant is in nullity.

Further prior to the institution of the suit. The 6 th defendant fell ill and due to

severe attack of paralysed and he survived as a person of unsound mind till his

death. Hence, the suit without making 6th defendant next friend being

represented on his behalf is a nullity. The decree which is the product of the

proceedings of the nullity cannot be allowed to be executed and it is liable to

be dismissed.

3. This court heard both side arguments and perused all the documents.

4. The points for determination is whether the petition is to be allowed

or not?

5. The petitioner has filed this petition under Order XXI Rule 35 CPC to

direct respondents/JD's to deliver the possession of the schedule mentioned

property to the decree holder quit and deliver the EP schedule mentioned
 .5.

property.

6. The respondent of 1, 4, 5, 6, 7, 8 entered their appearance and filed

their counter that the suit is inexecutable as it was filed against the dead

person Alamelu Ammal (D3) and the decree was passed without impleading

her legal heirs and further the petitioner has got the decree in

O.S.No.683/1970 behind the back of the respondents and got the order for

delivery on 07.05.1993 in E.P.No.268/1973 and the subsequent suit

O.S.No.1658/1985 for declaration and possession operate as resjudicata and

the 6th defendant who died pending suit and the decree has been passed

against the dead person without impleading the LR's of 6 th defendant and the

said defendant fell ill and due to severe attack of paralysed is survived as a

person of unsound mind and he was not represented by the next friend. The

decree which is the product of the proceedings of nullity cannot to be allowed

to be executed and it is to be dismissed.

7. On perusal of the records it is found that the suit O.S.No.1658/1985

filed by the plaintiff, the father of 3 to 7 petitioners against the 1 to 6

defendants/JDs and suit has been decreed on 09.04.1987 where in it was

decreed that the plaintiff is entitled to the plaint B,C,D,and E the schedule

properties and the defendant directed to deliver vacant possession of the

aforesaid properties to the plaintiff after the removal of super structure put up

by the defendants, the defendants are directed to pay cost of suit and
 .6.

Rs.600/­ each per annum towards mesne profits to the plaintiff from the date

of plaint to till the date of possession and on the basis of said decree the

plaintiff/1st decree holder has filed the above E.P. for delivery of possession.

Pending E.P. plaintiff died and his legal heirs 2 to 7 petitioner/DH were

added in the E.P. and 6th defendant/JD Loganathan died and his legal heirs 7

to 11 were added as respondent/JD and 10 th respondent/JD died and legal

heir 12 to 14 respondents/JDs were added. The contention of the

respondent/JD that the decree passed against the dead person and the 6 th

defendant not being represented by the next friend and the suit

O.S.No.683/1970 operate as resjudicata is not acceptable and those grounds

to be placed before the suit is decree and in appeal and not at the stage of

execution of the decree.

8. The decree is only with regard to deliver the possession of the

schedule mentioned property. The executing court cannot go beyond the

decree and the respondents/JDs are bound by the decree and this court does

not find any reason with the submissions of the respondents/JDs .

9. Considering the above this court inclines to allow this petition.

10. In the result E.P is allowed and the respondents/JDs are directed to

deliver the possession of the 'Petition Schedule mentioned property' to the

petitioners within 2 weeks failing which the decree is ordered to be executed

through the amine of this court. For report call on 02.09.2021

Dictated to the Steno-typist directly and typed by her corrected and pronounced

by me in open court this the 2nd day of August 2021.

Sd/­K.Nalinidevi,
District Munsif,
Tambaram

Petitioner side witnesses and documents:­Nil

Respondent side witnesses and documents­Nil

Sd/­K.Nalinidevi,
District Munsif,
Tambaram