RAVINDRAN Vs. M.S. MANICKAVEL

JUDGEMENT

(1.) This revision is directed by the respondent (third party) against the order passed in E.P. 8 of 1987 (in O.S. 103 of 1957 Sub Court, Madurai) on the file of the Sub Court, Devakottai.

(2.) The facts which are necessary for the disposal of the revision are briefly as follows: The respondent in this petition is the decree holder in the suit on O.S. 103 of 1957 on the file of the Sub-Court, Madurai. A preliminary decree was passed on 5.3.1960 and a final decree was passed on 18.8.1966 in which the respondent was allotted the petition mentioned property and other items to his share. In K pursuance of the final decree, he filed E.P. 9 of 1985 for actual delivery of possession of the property under Order 21 Rule 35, C.P. Code, against one Sethuraman who was the fourth defendant in the said suit. The said application was allowed. The said Sethuraman (respondent in E.P. 9 of 1985) was unsuccessful before this Court and the Supreme Court. When the Special Leave Petition was pending in the Supreme Court, the respondent herein went to take delivery of possession. Possession was obstructed by the tenants who were in occupation of the premises including the revision petitioner herein. 1 Thereupon, the Amin could not effect delivery and reported to the court to that effect that the tenants prayed for time to vacate the premises. The revision petitioner and other obstructors filed E.A. 137 of 1986 to dismiss the execution petition. Later, it is stated that they were also willing to attorn the tenancy in favour of the respondent after recognising the respondent as their landlord. They also made an endorsement to that effect. The revision P petitioner herein also made an endorsement in E.A. 137 of 1986 to the effect that he also or attorned the tenancy to the respondent Manickavel Nadar and that he reserves his right to launch proceedings against his vendor Sethuraman, who is the respondent in the main E.P. 9 of 1985. The respondent 'herein made an endorsement in E.P. 9 of 1985 on 9.12.1986, stating that since the tenants agreed to attorn the lease in favour of him and filed S memo to the said effect, the same may be recorded and orders may be passed. He along with his counsel made an endorsement on 11.12.1986 that he took delivery of the property. Thereupon the Court below passed an order to the effect that delivery was recorded and the E.P. is closed. The said order was passed on 11.12.1986.

(3.) Now, the respondent herein filed a second execution petition in E.P. 8 of 1987 under Order 21 Rule 35, C.P.C. read with S. 151, C.P.C. to the effect that he has been given only symbolical delivery on 25.11.1986 and that necessary orders may be passed for effecting actual, legal physical possession of the property to him. The said application is resisted by the revision petitioner herein and he filed two counters In the first counter, it is stated that his mother has been in occupation of the premises for about 30 years, that she has also put up a building in the premises by spending huge amounts and that they are entitled to the benefits of the City Tenants Protection Act. His mother purchased the same on 7.4.1984 for Rs. 60000 from Sethuraman, that the respondent came to his mother and offered to pay sum of Rs. 25000 and that since his mother did not agree, the petition is filed. Again, in the additional counter, it is stated that since he along with other tenants had attorned the tenancy and the respondent herein accepted the same and took symbolical delivery and the same has been recorded and the petition was closed the subsequent petition for execution for the same relief is not maintainable and on that ground, the petition is liable to be dismissed.