P.M.Jeyapandi, v. M. Mahendran,

ORDER The Civil Revision Petition is directed against the order passed in E.A.No.1 of 2022 in E.P.No.8 of 2020 in O.S.No. 2 of 2018, dated

14.07.2022 on the file of the Sub Court, Periyakulam.

¶2The respondent in the revision petition as plaintiff has filed the suit in O.S.No.2 of 2018, for declaration of title to the suit property and for recovery of possession.

¶3It is evident from the records that the suit, after full trial, was decreed as prayed for, vide judgment dated 14.11.2019 and thereby, declaring that the plaintiff is the absolute owner of the suit property and directed the defendants therein/revision petitioners to vacate the suit property and hand over the possession of the same to the plaintiff within two months from the date of judgment; that since the decree was not complied with, the decree holder has laid the execution petition in E.P.No.8 of 2020, seeking delivery of the suit property; that the revision petitioners/respondents have filed a counter statement to the execution petition raising objections that the defendants' house property is situated in S.No.1854/3 and the same has no connection whatever with the suit property situated in S.No.1854/1 and that the Executing Court by referring the objections raised by the revision petitioners and by observing that the merits of the objections can only be gone into at the time of taking delivery of the suit property and the same cannot be gone into at that stage, ordered for delivery.

¶4It is not in dispute that after passing of the order for delivery, the decree holder has filed the above application under Section 47 of C.P.C., seeking orders to amend the description of the property given in the execution petition.

¶5The case of the decree holder is that the second defendant has executed a settlement deed in respect of the suit property to her son Sukumar, dated 12.06.2020, stating that the suit property in S.No.1854/1 was then sub-divided into 2626/1 and the present S.No.2626/14, which is measuring the extent shown in the plaint; that subsequently the second defendant has executed rectification document to his son Sukumar, stating that S.No.1584/1 is mentioned instead of S.No.1854/3 that the second defendant has obtained patta in her name to the property bearing old S.No.2626/1 and new S.No.2626/14; that the defendants have been doing the above, with sole intention to cheat the decree holder and to commit a fraud and that therefore, it has become just and necessary to amend the description of the property given in the execution petition showing the new and old survey numbers.

¶6The defendants/judgment debtors have filed a counter affidavit raising serious objections to the proposed amendment.

¶7The learned Executing Judge, after enquiry, has passed the impugned order, dated 14.07.2022, allowed the proposed amendments. Aggrieved by the impugned order allowing the amendment petition, the judgment debtors have preferred the present revision.

¶8At the outset, it is necessary to refer the property described as the suit property in the plaint and also in the decree dated 14.11.2019. DESCRIPTION OF THE PROPERTY "bghpa Fsk; hpo> bghpa Fsk; 1 vz; ,iz rhh;gjpthsh; mYtyfk;> bghpa Fsk; jhYfh> nky;kq;fyk; fpuhkk;> Kjyf;fg;gl;o gQ;rhaj;J vy;iyf;Fl;gl;l ej;jk; rh;nt 1854/1 ek;ghpy; fl;Lg;gl;l fhypaplj;jpw;F ehd;F khy;. tlf;F : bkapd; nuhL fpHf;F : ghz;o ,lk; bjw;F : murhq;f ,lk; nkw;F : rhujh> nfhgpehj; ,lk; ,k;khypy; fpHnkyo 50> bjd;tlyo 45f;F rJuo 2>250 f;F rJukPl;lh 209.10 cs;s fhypaplKk;> nkw;go ,lj;jpw;Fz;lhd rfy ghijg; ghj;jpaq;fSk; cs;gl rh;tlf;fk;."

¶9Moreover, the decree holder in the execution petition in E.P.No.8 of 2020 has also shown the very same property, which was sought to be delivered in pursuance of the decree. But the decree holder, in the petition filed in E.A.No.1 of 2022 for amending the execution petition has given the description of the property as the proposed amendments. " Amend the particulars as given below In description of the property – y; ej;jk; rh;nt 1854/1 ek;ghpy; gpd; rh;nt ek;gh; 1854/3 g[jpa rh;nt ek;gh; 2626/14 giHa rh;nt ek;gh; 2626/1 vd;Wk; nkw;go rh;nt ek;ghpy; M];gpl;lh]py; nky; nfhg;g[ nghlg;gl;l brq;fy; Rth; 200 rJu moapy; fl;lg;gl;l tPL current connection No.05533012543 vd;gij jpUj;jpf; bfhs;sg;gLfpwJ."

¶10As rightly contended by the learned counsel for the revision petitioners, the plaintiff has been canvassing a case all along, that suit property is situated in S.No.1854/1, but now he wanted to amend the property shown in execution petition as if, the property is situated in S.No. 1854/3 with new S.No.2626/14, old S.No.2626/1 along with the house property constructed therein.

¶11When the matter is taken up for hearing today, the learned counsel for the respondent/plaintiff would submit that the plaintiff/decree holder has now decided to retain his earlier stand that the suit property is situated in S.No.1854/1 and that he is not pressing the amendments. He would further submit that the Executing Court may be directed to proceed with the property shown in the plaint, decree and in the execution petition taking note of the four boundaries.

¶12As rightly contended by the learned counsel for the revision petitioners, in the description of the property shown in the plaint and subsequently in the execution petition, four boundaries were mentioned along with measurements.

¶13The learned counsel for the revision petitioners has also raised an objection that the petition seeking amendments filed under Section 47 of C.P.C., is legally not maintainable.

¶14Without going into the merits of the case put forth by the both parties, taking note of the submission made by the learned counsel for the plaintiff/decree holder that they are not pressing the proposed amendments and they are not having any objection for setting aside the order passed by the Executing Court in E.A.No.1 of 2022 and for proceeding with the execution proceedings in respect of the property already shown and also taking note of the submission made by the learned counsel for the revision petitioners that plaintiff has all along been canvassing the case that the suit property is situated in S.No.1854/1, this Court is inclined to allow the revision and thereby setting aside the fair and decreetal order passed in E.A.No.1 of 2022, dated 14.07.2022 by the learned Subordinate Judge, Periyakulam.

¶15In the result, the Civil Revision Petition is allowed and the impugned order, dated 14.07.2022 in E.A.No.1 of 2022 in E.P.No.8 of 2020 in O.S.No.2 of 2018 on the file of the Sub Court, Periyakulam, is set aside. The Executing Court is directed to proceed with the proceedings in respect of the property shown as suit property in the decree, dated

14.11.2019. No costs. Consequently, connected Miscellaneous Petition is closed.

08.12.2023 NCC :yes/No Index :yes/No Internet:yes/No das To

1.The Subordinate Judge, Periyakulam.

2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. C.R.P.(MD)No.1522oofo2022 oK.MURALIoSHANKARoo,Jo. das Pre-deliveryoorderomadeoin C.R.P.(MD)No.1522oofo2022 and C.M.P.(MD)No.6489oofo2022 Datedo:o08.12.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 06.12.2023 Delivered on : 08.12.2023 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and C.M.P.(MD)No.6489 of 2022 1.P.M.Jeyapandi 2.J.Mahalakshmi : Petitioners/Respondents/ Respondents/Defendants Vs. M.Mahendran : Respondent/Petitioner/ Petitioner/Plaintiff Prayer : This Civil Revision Petition filed under Section 115 of C.P.C., to set aside the fair and decreetal order passed in E.A.No.1 of 2022 in E.P.No.8 of 2020 in O.S.No.2 of 2018 on the file of the Sub Court, Periyakulam, dated 14.07.2022. For Petitioners : Mr.H.Arumugam For Respondent : Mr.V.George Raja, for M/s.Ajmal Associates.