1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.02.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.189 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Rethinammal 2.S.Easwari 3.S.Revathi 4.S.Marthandam 5.S.Chandra 6.S.Thamaraiselvi 7.S.Mohan 8.S.Karunakaran .. Petitioners Vs. 1.R.Swaminathan 2.R.Ganesan 3.R.Rajasekaran 4.Lakshmi 5.R.Shantha 6.R.Panchapakesan .. Respondents Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal order dated 25.01.2011 passed in Execution Application No.- of 2011 in Execution Petition No.27 of 2010 in Original Suit No.44 of 2005 by the Principal Sub Court, Thanjavur. For Petitioner : Mr.S.Mani For Respondent No.2 : Mr.R.Rajaraman ORDER The impugned order dated 25.01.2011 passed in Execution Application No.- of 2011 in Execution Petition No.27 of 2010 in Original Suit No.44 of 2005 by the Principal Sub Court, Thanjavur is being challenged in the present Civil Revision Petition. 2. The respondents herein as plaintiffs have instituted Original Suit No.44 of 2005 on the file of the Court below for the reliefs of declaration, recovery of possession and also for mesne profits, wherein the present revision petitioners have been shown as defendants and the same has been decreed as prayed for. Against the Judgment and decree passed in Original Suit No.44 of 2005, Appeal Suit No.8 of 2008 has been preferred on the file of the Principal District Court, Thanjavur and the same has also been dismissed. Against the concurrent Judgments and decrees passed by the Courts below, Second Appeal No.195 of 2010 has been preferred on the file of this Court and the same has also been dismissed. In the meanwhile, the respondents/plaintiffs/ decree holders have filed Execution Petition No.27 of 2010 so as to execute the decree passed in Original Suit No.44 of 2005. Under the said circumstances, the present petition has been filed in Execution Application No.- of 2011 so as to take up the execution petition https://hcservices.ecourts.gov.in/hcservices/ 2 after a period of six months from 07.01.2011, the date on which this Court has passed its Judgment in Second Appeal No.195 of 2010. The Court below has rejected the same. Against the rejection order, the present Civil Revision Petition has been preferred. 3. The learned counsel appearing for the revision petitioner has contended that in Original Suit No.44 of 2005, the trial Court has passed a decree and thereby given six months time so as to surrender vacant possession of the suit property and the same has been confirmed in Appeal Suit No.8 of 2008 and the same has also been confirmed in Second Appeal No.195 of 2010 and under the said circumstances, the Judgment and decree passed in Original Suit No.44 of 2005 by the trial Court have become merged with the appellate Court's Judgment and decree and from the date of disposal of Second Appeal No.195 of 2010, the revision petitioners are having six months time so as to hand over vacant possession of the suit property and under the said circumstances the present petition has been filed, but the Court below has erroneously rejected the same and therefore the rejection order passed by the Court below is liable to be set aside. 4. Per contra, the learned counsel appearing for the respondents has contended that the trial Court has granted time to hand over vacant possession of the suit property till 19.05.2008 and under the said circumstances the period already granted by the trial Court has become expired and therefore there is no interdiction in proceeding with Execution Petition No.27 of 2010 and the Court below has rightly rejected the present Execution Application and therefore the rejection order passed by the Court below need not be interfered with. 5. It is an archaic and also pristine principle of law that the Judgment and decree passed by a trial Court have become merged with the Judgment and decree passed by an appellate Court. Only on that basis, the present execution application has been filed. But the Court below has simply rejected the same by saying that the same is not maintainable. The reasoning given by the Court below is totally erroneous. Under the said circumstances, the rejection order passed by the Court below is liable to be set aside and the matter is liable to be remitted to the file of the Court below as stated infra. 6. In fine, this Civil Revision Petition is allowed without costs and the rejection order passed in Execution Application No.- of 2011 in Execution Petition No.27 of 2010 in Original Suit No.44 of 2005 by the Principal Sub Court, Thanjavur is set aside and the Principal Sub Court, Thanjavur is directed to number Execution Application No.- of 2011, if it is otherwise in order and dispose of the same on merits. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(P & A) /True copy/ Sub Assistant Registrar(CS) https://hcservices.ecourts.gov.in/hcservices/ 3 To The Principal Subordinate Judge, Thanjavur. +1 CC to Mr.S.K.Mani, Advocate, Sr.No.3928 +1 CC to Mr.R.Rajaraman, advocate, Sr.No.3915 smn C.R.P(NPD)(MD)No.189 of 2011 and M.P(MD)No.1 of 2011 02.02.2011 TR : 14.02.2011 : 3p/4c https://hcservices.ecourts.gov.in/hcservices/