1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.S.A(MD)No.32 of 2011 and MP(MD)No.3 of 2011 V.Subramani .. Appellant/Objector Vs. 1.R.C.Diocease of Madurai through its Procurator Rec.Fr.Dhivyanandam .. 1st Respondent/Plaintiff 2.V.Marudhan .. 2nd Respondent/Defendant Civil Miscellaneous Second Appeal filed under Order 43 Rule 1 and r/w 100 CPC against the order dated 03.04.2009 passed in CMA No.361 of 2004 by the Additional Sub Court, Dindigul setting aside the order passed in E.A.No.6 of 1995 in E.P.No.66 of 1993 in Original Suit No.1024 of 1990 by the District Munsif Court, Nilakottai. For Appellant : Mr.S.Natesh Raja For R – 1 : Mr.C.Dhanaseelan For R – 2 : No appearance JUDGMENT This Civil Miscellaneous Second Appeal has been preferred against the order passed in CMA No.361 of 2004 by the Additional Sub Court, Dindigul, wherein the order passed in E.A.No.6 of 1995 in E.P.No.66 of 1993 in Original Suit No.1024 of 1990 by the District Munsif Court, Nilakottai is set aside. 2. The first respondent herein as plaintiff has instituted Original Suit No.1024 of 1990 on the file of the trial Court for the reliefs of recovery of possession, arrears of rent etc., wherein the second respondent herein has been shown as sole defendant. In Original Suit No.1024 of 1990 an executable decree has been passed and the same has been put into execution in E.P.No.66 of 1993. During pendency of the same, the appellant as petitioner has filed an application in E.A.No.6 of 1995 under Order 21 Rule 97 of the Code of Civil Procedure, 1908. The Executing Court has allowed the same. Against the order passed by the Executing Court, the decree holder/first respondent as appellant has preferred CMA.No.361 of 2004 on the file of the first appellate Court. 3. The first appellate Court after hearing both sides and upon reappraising the available evidence on record has allowed the appeal and thereby set aside the order passed in E.A.No.6 of 1995 and ultimately dismissed the same. Against the order passed in CMA.No.361 of 2004, the present Civil Miscellaneous Second Appeal has been preferred at the instance of the petitioner/objector as appellant. 4. The learned counsel appearing for the appellant has repeatedly contended that in Original Suit No.1024 of 1990 it has been clearly mentioned that the suit property is bearing door No.13-1-180 and in fact no house bearing door No.13-1-180 is in existence and the https://hcservices.ecourts.gov.in/hcservices/ 2 appellant/petitioner/objector is in possession and enjoyment of a property by way of paying penal tax and in recognition of his enjoyment 'B' memos have been issued and now under the guise of decree passed in Original Suit No.1024 of 1990 the first respondent has been making arrangements to take possession of the property which is actually in possession and enjoyment of the appellant/petitioner /objector and the Executing Court has rightly allowed E.A.No.6 of 1995. But the first appellate Court without looking into the Commissioner's report filed in E.A.No.6 of 1995 has erroneously dismissed the same and therefore, the order passed by the first appellate Court is liable to be set aside. 5. The learned counsel appearing for the first respondent has contended that the Commissioner who has been appointed in E.A.No.6 of 1995 filed only an incomplete report and on the basis of the same, the Court cannot come to a conclusion that the property which is said to be in possession of the appellant/petitioner/objector is nothing but the suit property mentioned in Original Suit No.1024 of 1990. Under the said circumstances the first appellate Court has rightly dismissed E.A.No.6 of 1995 and therefore, the order passed by the first appellate Court need not be interfered with. 6. It is an admitted fact that the first respondent as plaintiff has instituted Original Suit No.1024 of 1990 on the file of the trial Court for the reliefs of recovery of possession, arrears of rent etc., wherein the second respondent herein has been shown as sole defendant. In Original Suit No.1024 of 1990 an executable decree has been passed and the same has been put into execution in E.P.No.66 of 1993. During pendency of the same, the appellant /petitioner/objector has come forward with the present petition in E.A.No.6 of 1995. 7. It is also an admitted fact that in E.A.No.6 of 1995, an Advocate Commissioner has been appointed and he inspected the disputed property and filed his report, wherein it has been stated that as per the direction given by the Advocate Commissioner, the concerned surveyor has given a report. But the same has not been filed in the present Civil Miscellaneous Second Appeal. 8. The main contention urged on the side of the appellant/petitioner/objector is that he is in possession of the property in dispute by way of paying penal tax and in recognition of his enjoyment, 'B' memos have been issued. In the Executing Court, some 'B' memos have been marked as Exs.P3 and P4. In Exs.P3 and P4 no door number has been given. 9. As stated earlier, Original Suit No.1024 of 1990 has been instituted in respect of the building bearing door No.13-1-180. In Original Suit No.1024 of 1990 an executable decree has been passed only in respect of the building mentioned supra. The decree passed in Original Suit No.1024 of 1990 can be executed in E.P.No.66 of 1993 only on the basis of the property description mentioned therein. Except the property mentioned therein, the decree passed in E.P.No.66 of 1993 cannot be executed. https://hcservices.ecourts.gov.in/hcservices/ 3 10. As stated earlier, in Exs.P3 and P4 no door number has been given. Under the said circumstances, the objection raised in E.A.No.6 of 1995 cannot be entertained. However, the Executing Court can be directed to execute the decree passed in Original Suit No.1024 of 1990 as per the property description mentioned therein. 11. The first appellate Court after considering the lapses on the part of the appellant /petitioner/objector has rightly dismissed E.A.No.6 of 1995 and in view of the discussion made earlier this Court has not found any error in the order passed by the first appellate Court and altogether this Civil Miscellaneous Second Appeal deserves to be dismissed. 12. In fine, this Civil Miscellaneous Second Appeal deserves dismissal and accordingly is dismissed and the order passed in CMA No.361 of 2004 by the Additional Sub Court, Dindigul is confirmed. However, the Executing Court is directed to execute the decree passed in Original Suit No.1024 of 1990 only on the basis of the property description mentioned therein. Connected Miscellaneous Petition is also dismissed. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To 1.The Additional Sub Court, Dindigul 2.The District Munsif Court, Nilakottai. +1cc to Mr.C.Dhanaseelan, Advocate SR.No.21915 +1cc to M/s.B.S.G.Firm, Advocate SR.No.22219 C.M.S.A(MD)No.32 of 2011 06.07.2011 mj PA/05.08.2011/3P/5C https://hcservices.ecourts.gov.in/hcservices/