R.Balasankar vs Ramalakshmi

2026:MHC:834
C.R.P.(MD)Nos.3025 and 3419 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.02.2026
PRONOUNCED ON : 27.02.2026
CORAM
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
C.R.P.(MD)Nos.3025 and 3419 of 2025
and
C.M.P.(MD)Nos.17120 and 18546 of 2025
C.R..P(MD)No.3025 of 2025:-
R.Balasankar ... Petitioner
-vs.-
1.Ramalakshmi
2.Ramasamy
3.Balasubramanian
4.Ramasubramanian
5.Kumaresan
6.Kowselaya Devi ...Respondents
PRAYER : Civil Revision Petition is filed under Section 115 of the
Constitution of India, to set aside the order, dated 06.10.2025 made in E.A.No.
34 of 2014 in E.P.No.46 of 2009 in O.S.No.470 of 1986 on the file of the
Munsif Court, Sankarankovil, Tenkasi District.
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C.R.P.(MD)Nos.3025 and 3419 of 2025
For Petitioner :Mr.R.Bharanidharan
for Mr.R.Murali
For Respondents :Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.Thirunavukkarasu
C.R..P(MD)No.3419 of 2025:-
Ramasubramanian ... Petitioner
-vs.-
1.Ramalakshmi
2.Ramasamy
3.Balasubramanian
Mariammal (Died)
4. R.Balasankar
5.Kumaresan
6.Kowselaya Devi ...Respondents
PRAYER : Civil Revision Petition is filed under Section 115 of the
Constitution of India, to set aside the order, dated 06.10.2025 made in E.A.No.
34 of 2014 in E.P.No.46 of 2009 in O.S.No.470 of 1986 on the file of the
Munsif Court, Sankarankovil, Tenkasi District.
For Petitioner :Mr.A.Srinivasan
For R1 to R3 :Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.Thirunavukkarasu
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C.R.P.(MD)Nos.3025 and 3419 of 2025
*
COMMON ORDER
The present Civil Revision Petitions have been filed challenging the
order passed by the learned Principal District Munsif, Sankarankovil, Tenkasi
District, in E.A.No.34 of 2014 in E.P.No.46 of 2009 in O.S.No.470 of 1986,
dated 06.10.2025.
2.Heard Mr.R.Bharanidharan, learned Counsel representing
Mr.R.Murali, learned Counsel for the Revision Petitioner in C.R.P(MD)No.
3025 of 2025, Mr.A.Srinivasan, learned Counsel for the Revision Petitioner in
C.R.P(MD)No.3419 of 2025, Mr.S.Meenakshi Sundaram, learned Senior
Counsel for Mr.Thirunavukkarasu learned Counsel for the respondents in
C.R.P(MD)No.3025 of 2025 and for the respondents 1 to 3 in C.R.P(MD)No.
3419 of 2025.
The facts of the case in nutshell are as follows:-
3.One Appasamy Battar, the father of the respondents 1 to 3, as plaintiff,
had originally filed a suit in O.S.No.470 of 1986 before the District Munsif
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C.R.P.(MD)Nos.3025 and 3419 of 2025
Court, Sankarankovil, against one Sankarasubramania Battar and one Alagu
Thevar, the father of the Revision Petitioner in C.R.P(MD)No.3419 of 2025,
st
seeking for the relief of declaration to declare the suit 1 schedule property
belongs to the plaintiff and for recovery of possession with respect to the suit
nd
2 schedule property against the second defendant.
4.During the pendency of the suit, the defendants 1 and 2 died and their
legal heirs were brought on record as defendants 3 to 13. Subsequently, the
plaintiff also died and the respondents 1 to 3 and their mother, Valliammal
were brought on record as plaintiffs 2 to 5.
5.The suit was decreed ex parte on 12.09.2002. Subsequently, the
decree holders have filed an Execution Petition in E.P.No.46 of 2009. During
the pendency of the execution proceedings, the defendants/judgment debtors
have filed an application in E.A.No.34 of 2014 in E.P.No.46 of 2009 in
O.S.No.470 of 1986, under Section 47 of CPC to declare the judgment and
decree passed in O.S.No.470 of 1986 as null and void and to dismiss the
Execution Petition in E.P.No.46 of 2009. The learned Principal District
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C.R.P.(MD)Nos.3025 and 3419 of 2025
Munsif, Sankarankovil, vide impugned order, dated 06.10.2025, had dismissed
the said application on the ground that the grounds raised by the defendants are
not in accordance with law. Challenging the same, the above Civil Revision
Petitions have been filed.
6.Mr.R.Bharanidharan, learned Counsel for the Revision Petitioner in
C.R.P(MD)No.3025 of 2025 submitted that originally, the plaintiff has filed
the suit in O.S.No.470 of 1986 before the Principal District Munsif Court,
Sankarankovil, for declaration and recovery of possession against the second
defendant alone and pending suit, after the demise of the plaintiff and the
second defendant, their legal heirs were impleaded as parties to the suit, after
making necessary amendments. However, after impleading the legal heirs of
the second defendant, the plaintiffs have not taken any steps to to amend the
prayer with regard to the relief sought as against the second defendant. As the
plaintiffs have not amended the prayer seeking relief against the legal heirs of
the second defendant, the decree is inexecutable as against the other
defendants.
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C.R.P.(MD)Nos.3025 and 3419 of 2025
7.It is further submitted that subsequently, the plaintiffs have made an
application in I.A.No.462 of 2016 in O.S.No.470 of 1986 to amend the decree
by seeking the relief of recovery of possession against all the defendants.
However, on 08.06.2018, they withdrew the said application, which itself is
evident that the plaintiffs are aware of the fact of inexecutable decree.
However, the Court below has wrongly dismissed the application filed by the
defendants, which needs interference of this Court.
8.It is further pointed out that the plaintiffs while proceeding with the
execution petition, filed an application in E.A.No.3 of 2024 to amend the
prayer in the execution petition to include the buildings, which are available in
the suit schedule property. However, in the suit, the second defendant has filed
a written statement in the year 1987 specifically mentioning the buildings
available in the suit property from 1976 onwards with proper electricity service
connection and licence. Hence, it is submitted that in order to overcome the
lacuna in the decree, the plaintiffs have filed an application in the year 2024
and without pursuing the said application, they withdrew the said application,
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C.R.P.(MD)Nos.3025 and 3419 of 2025
which is evident that the plaintiffs are aware of the lacuna in the decree.
9.It is their primary contention that the judgment made by the trial Court
in O.S.No.470 of 1986, which is sought to be executed by the plaintiffs is not a
judgment in terms of Order 20 Rules 4, 5 and 6 of CPC, as the trial Court never
discussed about the case of the plaintiffs, the documents produced by the
plaintiffs, issues, which are required to be considered and without any
consideration, the suit was decreed in two lines by the trail Court on
12.09.2002.
10.It is further contended that the Court below ought to have seen that
the decree against the other defendants cannot be executed, as they are not
parties. The executing Court cannot go beyond the decree and hence, the
execution petition against the other defendants is liable to be dismissed.
Further, it is contended that the Executing Court has not considered the
provision of law and without applying the law governing the same, has
dismissed the execution application filed by the petitioners and the same is
liable to be interfered with by this Court. Further, the trial Court ought to have
considered that there existed a building in the second suit schedule property
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C.R.P.(MD)Nos.3025 and 3419 of 2025
prior to the suit and the same has been pleaded by the second defendant before
the trial Court, however, the trial Court has considered the same while passing
the judgment and decree. It is their further contention that the Executing Court
has miserably failed to consider that the decree for recovery of possession has
been obtained against a dead person and the same cannot be executed against
the other defendants. Hence, they seeks interference of this Court.
11.In support of his contentions, the learned Counsels for the petitioners
relied upon the following judgments:
(1)The judgment of Hon'ble Supreme Court in the case of Arun Lal and
others vs Union of India and others , reported in ( 2010) 14 SCC 384 , wherein,
the Hon'ble Supreme Court has held as follows:
“13 . Answering Question 1 in the affirmative the High Court
held that the grant in question was an old grant and that resumption
of land measuring 2.792 acres in terms of Notice dated 23-9-1970
and taking over of possession on 6-11-1970 had attained finality
between the parties. Question 2 was answered by the High Court in
the negative. It was held that the question whether the grant was old
or new was not directly and substantially in issue in Suit No. 842 of
1958. The principle of res judicata did not, therefore, debar the plea
that the grant was an old grant. Insofar as Question 3 is concerned,
the High Court held that there was no limitation prescribed for filing
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C.R.P.(MD)Nos.3025 and 3419 of 2025
of objections under Section 47 CPC and hence rejection of objections
by the Revisional Court on that ground was not legally correct. The
present appeals assail the correctness of the judgment and order of
the High Court as already noticed above.
14 . Having heard the learned counsel for the parties at
considerable length we do not find any reason, much less a
compelling one, for us to take a view different from the one taken by
the High Court. That land measuring 2.792 acres appurtenant to the
bungalow was resumed in terms of the Notice dated 23-9-1970 has
not been disputed before us. That the said notice was not assailed by
the grantees before any court or authority is also not in dispute. That
possession of the resumed land appurtenant to the bungalow was
taken over on 6-11-1970 has also not been assailed nor is the finding
recorded to this effect by the High Court under challenge. At any rate
we see no error or perversity in that finding of the High Court to
warrant interference.
15 . It is common ground that the land appurtenant to the
bungalow had been utilised by the Union of India for construction of
barracks. The entire extent of 2.792 acres of land including the one
under the barracks could, therefore, be taken over pursuant to the
resumption order which was never assailed and had thereby attained
finality. Such being the position, the High Court was right in holding
that possession of the above extent of land could not be taken away
from the Union of India for delivery to the decree-holders. That is
because after the resumption of the property and the taking over of
the possession by the Union of India in exercise of its rights as the
paramount title-holder, it was no longer holding the same as a tenant
so as to be answerable to the petitioners as its landlords. The Union
of India was on the contrary holding the resumed property in its own
right and in a capacity that was different from the one in which it had
suffered the decree for eviction. This was a significant change in the
circumstances in which the decree was passed rendering it
inexecutable.
16 . So also the question whether the grant of land was old or
new has in our opinion been correctly answered by the High Court.
There is nothing before us nor was any serious attempt made by the
learned counsel appearing for the appellant to demonstrate that the
finding of the High Court in regard to the said question suffered from
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C.R.P.(MD)Nos.3025 and 3419 of 2025
any error or perversity. Similarly, the question whether the objections
filed by the respondent judgment-debtor were barred by limitation
should also not detain us, for we endorse the view taken by the High
Court that such objections could not be ignored or rejected on the
ground that the same were filed beyond the period of limitation.
17 . That leaves us with the question whether the decree is
executable qua the main bungalow itself. We must to the credit of the
respondents mention that the executability of the decree qua the main
bungalow was not assailed or questioned on behalf of the
respondents. As a matter of fact, the possession of the main bungalow
appears to have been delivered to the decree-holders, which the
decree-holders will be entitled to retain, till such time the Union of
India issues any further orders of resumption of the property in
exercise of powers vested in it under the relevant provisions of law.”
(2)The judgment of Hon'ble Supreme Court in the case of
K.P.Natarajan and another vs Muthalammal and others , reported in (2021)
15 SCC 817 , wherein, the Hon'ble Supreme Court has held as follows:
“ 21. The contention that in a revision arising out of the
dismissal of a petition under Section 5 of the Limitation Act, 1963,
the High Court cannot set aside the ex parte decree itself, by
invoking the power under Article 227, does not appeal to us. It is too
well-settled that the powers of the High Court under Article 227 are
in addition to and wider than the powers under Section 115 of the
Code. In Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] , this Court went as far as to hold
that even certiorari under Article 226 can be issued for correcting
gross errors of jurisdiction of a subordinate court. But the
correctness of the said view insofar as it related to Article 226, was
doubted by another Bench, which resulted in a reference to a three-
member Bench. In Radhey Shyam v. Chhabi Nath [Radhey
Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] ,
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C.R.P.(MD)Nos.3025 and 3419 of 2025
the three-member Bench, even while overruling Surya Dev
Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] on the
question of jurisdiction under Article 226, pointed out that the
jurisdiction under Article 227 is distinguishable. Therefore, we do
not agree with the contention that the High Court committed an error
of jurisdiction in invoking Article 227 and setting aside the ex parte
decree.”
(3)The judgment of Hon'ble Division Bench of this Court in the case of
K.Loganathan vs K.Sahadevan and others , reported in 2013 2 CTC 177 ,
wherein, the Hon'ble Divisoin Bench of this Court has held as follows:
“ 8. It is also settled position of law that, when a vakalat has
been filed by the Counsel appearing for the Defendant or the
Plaintiff, as the case may be, and the said Counsel has not appeared,
it is incumbent upon the Court to issue notice to the parties
concerned, vide judgment of the Hon'ble Apex Court in Malkiat
Singh v. Joginder Singh, 1997 (3) CTC 619 (SC) : AIR 1998 SC 258.
The said method has not been adopted while setting the Appellant ex
parte. Even otherwise, the Appellant was said to be absent for only
three hearings. The hearings were between 23.4.2010 & 28.4.2010,
within a span of seven days.”
(4)The judgment of this Court in the case of J.Savithri and another vs
Selvaraj and others , reported in 2023 4 LW 716 , wherein, this Court has held
as follows:
6. When I have found the judgment and decree itself to be
contrary to law applicable under the Hindu Succession Act and the
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C.R.P.(MD)Nos.3025 and 3419 of 2025
Code of Civil Procedure, I am not bound by this technical objection
taken by the learned counsel for the petitioner. Infact the Supreme
Court in the case of K.P.N. atrajan v. Muthalamman, (2021) 15 SCC
817 (Per V. Ramasubramaniyan J.) has held that during the course of
dealing with a revision under Section 5 of the Limitation Act, if it is
found the decree is contrary to law, it can be interfered with. If in a
collateral proceedings, it comes to the notice of the Court that the
judgment is a contrary to law, even then the High Court, under
Article 227 of Constitution of India , is empowered to set aside the
decree.”
(5)The judgment of this Court in the case of Subbathal (died) and
others vs Narayanasamy and others , reported in (2025) 6 MLJ 551 , wherein,
this Court has held as follows:
“36.In the light of the settled legal position, as expanded by
the Hon'ble Supreme Court as well as this Court, the said judgment
is exfacie illegal and inexecutable and it is open to be challenged
even in a petition under Section 47 of CPC which has rightly been
done by the revision petitioners in the present case. Unfortunately,
the trial Court has not adverted and focussed its attention to the core
dispute involved in the present case and has erroneously proceeded
to dismiss the application filed by the revision petitioners, instead of
allowing the same. For all the above reasons, I am inclined to allow
the Civil Revision Petition.”

(6)The judgment of this Court in the case of The Tahsildar and others
vs P.Ganesan , in C.R.P(MD)No.3669 of 2025 , dated 17.12.2025, wherein, this
Court has held as follows:
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C.R.P.(MD)Nos.3025 and 3419 of 2025
“11.From the perusal of the judgment passed by the learned
District Munsif, Sivagangai, in O.S.No.190 of 2010, dated
24.02.2011, it is to be noted that the learned trial Judge has not
passed the judgment in consonance with Order 20 Rules 4, 5 and 6 of
CPC. Further, it is to be noted that judgment of a Court, shall
contain a concise statement of the case, the points for determination,
the decision thereon and the reasons for such decision. However, in
the present case, the defendants were set ex parte and the trial Court
did not frame any issue for deciding the suit and had simply
examined PW-1 and marked Ex-A1 to Ex-A7 and has passed a
cryptic judgment, which is contrary to the provisions of Order 20

Rules 4, 5 and 6 of CPC, which is ex facie illegal.”
12.Mr.A.Srinivasan, learned Counsel for the Revision Petitioner in
C.R.P(MD)No.3419 of 2025 submitted that he has adopted the arguments
advanced by the learned Counsel for the petitioner in C.R.P(MD)No.3419 of
2025.
13. Per contra , Mr.S.Meenakshi Sundaram, learned Senior Counsel for
the respondents refuted the contentions raised by the learned Counsel for the
petitioners. It is his contention that the first defendant in the suit, who claimed
to be the owner of the property, had sold the suit property to the second
defendant. After the death of the second defendant in the suit, his legal heirs
were brought on record as defendants 3 to 7, however, they did not participate
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C.R.P.(MD)Nos.3025 and 3419 of 2025
in the suit. Therefore, they were remained ex parte on 12.09.2002. Therefore,
an Execution Petition was filed in E.P.No.46 of 2009, wherein, the revision
petitioners were participated and thereafter, an order of delivery was passed in
the Execution Petition on 12.09.2013, which attained finality. In the
interregnum, two applications were filed in E.A.Nos.33 and 34 of 2014 to
appointment an Advocate Commissioner and the same got dismissed on
08.10.2014 and the said order was challenged before this Court in
C.R.P(MD)No.2439 of 2014, which was also dismissed on 27.11.2014.
14.He also submitted that the present impugned order has been passed
on the ground of maintainability and on merits. He vehemently contended that
the application filed by the defendants under Section 47 of CPC is not
maintainable, when the legal heirs of the second defendant were made as
defendants 3 to 7 and after the amendment made, the revision petitioners did
not make any attempt to establish that the suit property belongs to the first
defendant and ex parte judgment and decree was passed against the
defendants. It is his further submission that against the judgment and decree
passed in the original suit, dated 12.09.2002, the defendants did not file any
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C.R.P.(MD)Nos.3025 and 3419 of 2025
appeal or file an application to set aside the ex parte decree and therefore, the
judgment and decree passed in O.S.No.476 of 1985 has reached its finality and
that the present application has been rightly dismissed by the Court below,
which needs no interference of this Court.
15.In support of his contentions, the learned Senior Counsel has relied
upon the following judgments:
(1)The judgment of Hon'ble Supreme Court in the case of Rahul S.Shah
vs Jinendra Kumar and others , reported in (2021) 6 SCC 418 , wherein, the
Hon'ble Supreme Court has held as follows:
“ 24. In respect of execution of a decree, Section 47 CPC
contemplates adjudication of limited nature of issues relating to
execution i.e. discharge or satisfaction of the decree and is aligned
with the consequential provisions of Order 21 CPC. Section 47 is
intended to prevent multiplicity of suits. It simply lays down the
procedure and the form whereby the court reaches a decision. For
the applicability of the section, two essential requisites have to be
kept in mind. Firstly, the question must be the one arising between
the parties and secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the objective of Section
47 is to prevent unwanted litigation and dispose of all objections as
expeditiously as possible.”
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C.R.P.(MD)Nos.3025 and 3419 of 2025
(2)The judgment of Hon'ble Supreme Court in the case of Pradeep
Mehra vs Harijivan J.Jethwa and others , reported in 2023 SCC OnLine SC
1395 , wherein, the Hon'ble Supreme Court has held as follows:
“ 11. The multiple stages a civil suit invariably has to go
through before it reaches finality, is to ensure that any error in law is
cured by the higher court. The appellate court, the second appellate
court and the revisional court do not have the same powers, as the
powers of the executing court, which are extremely limited. This was
explained by this Court in Dhurandhar Prasad Singh v. Jai Prakash
University, (2001) 6 SCC 534 , in para 24, it had stated thus:
“24. ………. The exercise of powers under Section 47 of the Code is
microscopic and lies in a very narrow inspection hole. Thus, it is
plain that executing court can allow objection under Section 47 of
the Code to the executability of the decree if it is found that the same
is void ab initio and a nullity, apart from the ground that the decree
is not capable of execution under law either because the same was
passed in ignorance of such a provision of law or the law was
promulgated making a decree inexecutable after its passing.”
12. This Court noted further:
“………. The validity or otherwise of a decree may be challenged by
filing a properly constituted suit or taking any other remedy
available under law on the ground that the original defendant
absented himself from the proceeding of the suit after appearance as
he had no longer any interest in the subject of dispute or did not
purposely take interest in the proceeding or colluded with the
adversary or any other ground permissible under law.
13. The reality is that pure civil matters take a long time to be
decided, and regretfully it does not end with a decision, as execution
of a decree is an entirely new phase in the long life of a civil
litigation. The inordinate delay, which is universally caused
throughout India in the execution of a decree, has been a cause of
concern with this Court for several years. In Rahul S.
Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 , this Court had
observed that a remedy which is provided for preventing injustice (in
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C.R.P.(MD)Nos.3025 and 3419 of 2025
the Civil Procedure Code) is in fact being misused to cause injustice
by preventing timely implementation of orders and execution of
decrees. Then, it had observed as under:
“23. ……………. The execution proceedings which are supposed to
be a handmaid of justice and subserve the cause of justice are, in
effect, becoming tools which are being easily misused to obstruct
justice.”
14. The above judgment is an important judgment in respect of
Section 47 as well as Order XXI, CPC as the three Judge Bench
decision of this Court not only condemned the abuse of process done
in the garb of exercise of powers under Section 47 read with Order
XXI, CPC , but also gave certain directions to be followed by all Civil
Courts in their exercise of powers in the execution of a decree. It
further directed all the High Courts to update and amend their Rules
relating to the execution of decrees so that the decrees are executed
in a timely manner. As far as Section 47 is concerned, this Court had
stated as under:
“24. In respect of execution of a decree,
Section 47 CPC contemplates adjudication of limited nature of issues
relating to execution i.e. discharge or satisfaction of the decree and
is aligned with the consequential provisions of Order 21 CPC .
Section 47 is intended to prevent multiplicity of suits. It simply lays
down the procedure and the form whereby the court reaches a
decision. For the applicability of the section, two essential requisites
have to be kept in mind. Firstly, the question must be the one arising
between the parties and secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the objective of Section
47 is to prevent unwanted litigation and dispose of all objections as
expeditiously as possible.
25. These provisions contemplate that for execution of decrees,
executing court must not go beyond the decree. However, there is
steady rise of proceedings akin to a retrial at the time of execution
causing failure of realisation of fruits of decree and relief which the
party seeks from the courts despite there being a decree in their
favour. Experience has shown that various objections are filed before
the executing court and the decree-holder is deprived of the fruits of
the litigation and the judgment-debtor, in abuse of process of law, is
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C.R.P.(MD)Nos.3025 and 3419 of 2025
allowed to benefit from the subject-matter which he is otherwise not
entitled to.
26. The general practice prevailing in the subordinate courts is that
invariably in all execution applications, the courts first issue show-
cause notice asking the judgment-debtor as to why the decree should
not be executed as is given under Order 21 Rule 22 for certain class
of cases. However, this is often misconstrued as the beginning of a
new trial. For example, the judgment-debtor sometimes misuses the
provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral
plea, which invariably leaves no option with the court but to record
oral evidence which may be frivolous. This drags the execution
proceedings indefinitely.”
15. This Court then gave certain directions, which were to be
mandatorily followed by all Courts dealing with civil suits and
execution proceedings. Two of its directions were as follows:
“42……………. …………. …………. ………….
42.8. The court exercising jurisdiction under Section 47 or under
Order 21 CPC , must not issue notice on an application of third party
claiming rights in a mechanical manner. Further, the court should
refrain from entertaining any such application(s) that has already
been considered by the court while adjudicating the suit or which
raises any such issue which otherwise could have been raised and
determined during adjudication of suit if due diligence was exercised
by the applicant.
………..
……….
42.12. The executing court must dispose of the execution proceedings
within six months from the date of filing, which may be extended only
by recording reasons in writing for such delay.
42.13. ……..”
16. It further directed all the High Courts to update their Rules
relating to execution of decrees. It was as under:
“43. We further direct all the High Courts to reconsider and update
all the Rules relating to execution of decrees, made under exercise of
its powers under Article 227 of the Constitution of India and
Section 122 CPC , within one year of the date of this order. The High
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C.R.P.(MD)Nos.3025 and 3419 of 2025
Courts must ensure that the Rules are in consonance with CPC and
the above directions, with an endeavour to expedite the process of
execution with the use of information technology tools. Until such
time these Rules are brought into existence, the above directions
shall remain enforceable.”
(3)The judgment of this Court in the case of K.S.Chidarambaram vs
Gomathi Ammal and others , in S.A.No.333 of 1983 , dated 06.02.1996,
wherein, this Court has held as follows:
“ 9.Considering the entire evidence on record in th is case, I
am of the view that neither acquiescence nor estoppel could be
inferred from the nebulous and too general manner of allegations
and claims made by the defendant, merely taking advantage of the
observations contained in the judgments about the construction
having been made in the year 1972. The very case of the defendant
was that after h is purchase, he has not only re-built the house, but
thereafter put up the offending wall also and in the absence of any
specific plea or material to substantiate the point of time at which the
offending construction has been put up, the courts below would only
be justified, in my view, to come to the conclusions that the
construction in th is case was contemporaneous with the d is putes
between the parties emerging with the is sue of notice by the
defendant marked as Ex.A-5. Though it is merely claimed for the
defendant that there was no objection when the construction was
made, the facts pleaded and deposed on the plaintiffs'' side show that
d is putes really cropped up between parties with objections followed
by the is sue of notice by the defendant and the murder of the husband
of the first plaintiff as a sequel and the suit immediately following the
exchange of notices cannot be completely ignored. If the defendant
has to succeed on the ground of estoppel or acquiescence so as to
deny the relief of recovery of possession to the plaintiffs, whose title
has been sustained by both the courts below, it is for the plaintiffs to
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C.R.P.(MD)Nos.3025 and 3419 of 2025
not only prove specifically the point of time of construction but also
the further claim made by the defendant that there was no objection
at all at the relevant point of time, as also the circumstances under
which the notice under Ex.A-5 came, to be is sued. In my view, except
making mere general averments and claims, the necessary factual
details do not appear to have been either pleaded with prec is ion or
proved with any positive material. While that be the position, it
would be inappropriate on them besides available on record in
th is case to, draw an inference of estoppel by conduct or
acquiescence against the plaintiffs so as to deny them the relief of
recovery of possession. The principle of estoppel by conduct or
acquiescence itself being a matter of inference, the same could be
deduced from and only on the bas is of properly pleaded and proved
facts and the necessary factual bas is also cannot be inferred from the
conduct to further infer the principle of estoppel to the detriment of
the plaintiffs, who succeeded in both the courts below. In view of the
above, there is no scope for applying the principles laid down by
th is Court in the two dec is ions referred to above to deny the relief of
recovery of possession concurrently granted by both the courts
below. It is by now well settled that recovery of possession can be
granted by courts on declaring title of the plaintiffs and such
recovery of possession can be enforced even after removing the
superstructure, if any, put up without any separate decree in the form
of mandatory injunction in that regard. Consequently, I do not see
any infirmity in law in the relief of recovery of possession granted by
the courts below, as a consequence of declaration of title in favour of
the plaintiffs. The second appeal, therefore, fails and shall stand

d is m is sed. There will be no order as to costs.”
(4)The judgment of this Court in the case of Kannu Gounder vs Natesa
Gounder , reported in 2004 SCC OnLine Mad 292 , wherein, this Court has
held as follows:
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C.R.P.(MD)Nos.3025 and 3419 of 2025
“8. In the case of B. Gangadhar v. B.G. Rajalingam, 1995 (2)
MLJ (SC) 107 : ((1995) 5 SCC 238 : AIR 1996 SC 780 ) the Apex
Court held as under:
The exercise of incidental, ancillary or inherent power
inconsequential to deliver possession of the property in execution of
the decree. No doubt, the decree does not contain a mandatory
injunction for demolition. But when the decree for possession had
become final and the judgment-debtor or a person interested or
claiming right through the judgment-debtor has taken law in his
hands and made any constructions on the property pending suit, the
decree-holder is not bound by any such construction. The relief of
mandatory injunction, therefore, is consequential to or necessary for
effectuation of the decree for possession, it is not necessary to file a
separate suit when the construction was made pending suit without
permission of the Court. Otherwise, the decree becomes inexecutable
driving the plaintiff again for another round of litigation which the
Code expressly prohibits such multiplicity of proceedings.”
9. As such, it is contended that though the plaintiff/decree-
holder had obtained a decree for mandatory injunction. It is only
superfluous and when the Court granted a decree for possession, the
said decree can be executed for removing any manner of
superstructure in the suit property.
10. Learned advocate for the revision petitioner would once
again submit that the decision rendered in 1995 (2) MLJ (ASC) 107 :
((1995) 5 SCC 238 : AIR 1996 SC 780) is applicable only to the case,
where the defendant/judgment-debtor has put up construction during
the pendency of the proceedings i.e. pendente lite only and in the
present case, the construction was put up by the defendant/judgment-
debtor prior to the filing of the suit and therefore, the construction
cannot be removed.
11. Though the ruling deals with the construction put up
during the pendency of the suit, the same principle would be
applicable even to the construction put up prior to the filing of the
suit also. It is needless to point out that the construction put up by the
defendant/judgment-debtor whether before or after filing of the suit,
is liable to be removed if there is a prayer for possession. When there
is a decree for delivery for vacant possession which would mean and
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C.R.P.(MD)Nos.3025 and 3419 of 2025
include, delivery after removing all the structures or anything in the
suit property and therefore, the plaintiff/decree holder is entitled to
take delivery of possession after removal of any manner of
construction or structures in the suit property and therefore, I am not
inclined to accept the arguments advanced on behalf of the revision
petitioner.”

(5)The judgment of this Court in the case of Padmavathi vs
Kaveriammal , reported in 2009 1 CTC 58 , wherein, this Court has held as
follows:
“ 9. As for the facts of the present case, there is no allegation in
the Petition to the effect that the final decree was passed by the Court
which has no jurisdiction. Further there is nothing in the pleading
that the Court which passed the decree has usurped jurisdiction
which it did not have. Even if a decree is considered to be an illegal
one, still it cannot be stated that it is unworkable and the remedy
open to the party aggrieved is to prefer Appeal or Revision before the
higher forum, in case if the same was passed by the Court of
competent jurisdiction. A decree could not be allowed to starve for its
execution.”
(6)The judgment of this Court in the case of Ramachandran vs
Sankaraiah Naidu , reported in 2010 5 MLJ 382, wherein, this Court has held
as follows:
“17. In the instant case on hand, the Civil Revision Petitioner
had categorically admitted in his evidence as P.W.1 before the
Executing Court that he was aware of O.S.No.207 of 1991 details 5
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C.R.P.(MD)Nos.3025 and 3419 of 2025
years before and that the Mother had executed the Settlement Deed
Ex.P1 dated 28.11.2002 in his favour. In E.A.No.252/2003 filed by
the Respondent/Decree Holder for Delivery, Delivery was ordered as
early as on 30.07.2003 and pending delivery being effected, E.A.No.
50 of 2004 was filed by the Revision Petitioner. From the evidence of
P.W.1, it is candidly clear that the Revision Petitioner being an one of
the legal heirs of the deceased Mother viz., Judgment Debtor was
aware of the entire transaction between his Mother and the
Respondent/Decree Holder in law, an Executing Court is duty bound
to give effect to the Decree in its substance and must not pass any
order rendering the judgment of the trial Court as an otiose one and
in that view of the matter, inasmuch as Ex.P1 Settlement Deed dated
28.11.2002 after passing of the Decree dated 11.06.2001 certainly the
said document was executed by the Deceased Mother of the Civil
Revision Petitioner (Judgment Debtor) in his favour only with the
view to deprive the Respondent/Decree Holder in enjoying the fruits
of the Decree and it is well settled principle of Law that a specific
performance decree obtained by a Litigant/Party implies the Decree
for possession and as such, the Civil Revision Petitioner cannot lay a
claim as per Ex.P1 Settlement Deed dated 28.11.2002 which is non
est in Law. In that view of the matter, E.A.No.50 of 2004 filed by the
Revision Petitioner under Section 47 of the Civil Procedure Code is
per se not maintainable in law and resultantly, the Civil Revision
Petition fails.”
16.This Court considered the submissions made on either side and
perused the materials available on record.
17.The facts are not in dispute. Admittedly, one Appasamy Battar, the
father of the respondents 1 to 3, as plaintiff, had originally filed a suit in
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C.R.P.(MD)Nos.3025 and 3419 of 2025
st
O.S.No.470 of 1986 seeking for the relief of declaration to declare the suit 1
schedule property belongs to the plaintiff and for recovery of possession with
nd
respect to the suit 2 schedule property against the second defendant, before
the Additional District Munsif Court, Sankarankovil, against one
Sankarasubramania Battar and one Alagu Thevar. Both the plaintiff and the
defendants died during the pendency of the suit and their legal heirs were
impleaded as parties to the suit. In the said suit, the defendants remained ex
parte and the said ex parte judgment and decree was not challenged by the
defendants. However, an interlocutor application was filed by the plaintiffs in
I.A.No.462 of 2016 seeking to amend the decree for recovery of possession as
against all the defendants. However, the said application was withdrawn by
the plaintiffs on 08.06.2018.
18.It is to be noted that in the written statement filed by the second
defendant in the year 1987, it had been clearly stated about the building along
with proper electricity service connection and licence for the same. After filing
of the Execution Petition, the plaintiffs have filed an application in E.A.No.3
of 2024 in E.P.No.46 of 2009 to amend the schedule. The said application was
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C.R.P.(MD)Nos.3025 and 3419 of 2025
also withdrawn by the plaintiff on 28.08.2025. Thus, it is evident that I.A.No.
462 of 2016, which was filed to amend the prayer of recovery of possession
against all the defendants was withdrawn on 08.06.2018 and the amendment
application in E.A.No.3 of 2024 to amend the suit schedule property was also
withdrawn on 28.08.2025, thereby, the prayer sought in the original suit is
intact without any alteration.
19.It is one of the frontal attack of the revision petitioners that the ex
parte judgment in O.S.No.470 of 1986, dated 12.09.2002, is a cryptic in
nature, which will not satisfy the requirements of Order 20 Rules 4, 5 and 6 of
CPC. This judgment passed in O.S.No.470 of 1986, dated 12.09.2002 is
extracted hereunder:
“ gpuhJ 1tJ jgrpy; nrhj;J thjpf;Fg;
ghj;jpag;gl;lnjd tpsk;Gid nra;tjd; %yk; gpuhJ
1tJ jgrpy; nrhj;jpd; xUgFjpahd 2k; jgrpy;
nrhj;jpypUe;J 2k; gpujpthjpia mg;Gwg;gLj;jp> thjpf;F
trk; \ nrhj;ij ePjpkd;wk; %yk; tho;tpj;Jf;
nfhLf;Fk;gbf;Fk;> thjpf;F 2k; gpujpthjpaplkpUe;J gpuhJ
NjjpapypUe;J tho;tpg;G Njjp tiu kj;jpa fhy e\;lk;
fpilf;fFk; gbf;Fk; tof;fpd; nryTj; njhif
NfhhpAk; ,e;j tof;F jhf;fy; nra;ag;gl;Ls;sJ.
thjp M[h;. epugd cWjpf;fw;whid jhf;fy;
nra;ag;gl;lJ. th.rh.M.1 kw;Wk; th.rh.M.2
Fwpaplg;gl;ld. tof;F ep&gzkhdJ. tof;F nryTj;
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C.R.P.(MD)Nos.3025 and 3419 of 2025
njhifAld; jPh;g;ghiz nra;J jPh;g;gspf;fg;gLfpwJ.”
20.With regard to the law laid down by the Hon'ble Supreme Court, as
discussed supra, the issue whether the prayer, which is now sought by the
revision petitioners under Section 47 of CPC can be entertained or not. There
is no dispute with regard to the executablity of the decree. Even if the decree
is an ex parte decree, it has to reach its logical conclusion through the
execution petition. As seen from the records, before going into the procedure
adopted by the Executing Court, it is incumbent to read the ex parte judgment.
The above judgment, which is extracted supra, would only reveal that the ex
parte judgment has not discussed about the contents in the plaint and the
written statement filed by the second defendant and there is no discussion
about the documents produced. In an ex parte judgment, the judgment should
speak about the relevance of the plaint, written statement filed and the issue for
determination and the conclusion. If all these factors are not stated in an ex
parte judgment and if a judgment is a cryptic judgment in nature, then the said
cryptic judgment cannot be considered as a judgment in the eye of law, as it is
not satisfied the requirements Order 20 Rules 4, 5 and 6 CPC.
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C.R.P.(MD)Nos.3025 and 3419 of 2025
21.Coming to the execution petition filed by the decree holder, the
Executing Court is bound to pass an order without making any alteration in the
decree. The prayer sought in the suit is as follows:
“ v)gpuhjpd; 1tJjgrpy; nrhj;J thjpf;Fg;
ghj;jpag;gl;lnjd bf;sNu\d; nra;tjd; %ykhf> gpuhjpy;
1tJ jgrpy; nrhj;jpy; xU gFjpahd 2k; jgrpy;
nrhj;jpypUe;J 2k; gpujpthjpia mg;Gwg;gLj;jp> thjp
trk; \ nrhj;ij r%fk; Nfhh;l; %yk; tho;tpj;Jf;
nfhLf;Fk;gb bfphp gpwg;gpf;Fk;gbf;Fk;
(gp)thjpf;F 2k; gpujpthjpaplkpUe;J gpuhJ
NjjpapypUe;J tho;tpg;G Njjp tiu kj;jpa fhy e\;lk;
fpilf;Fk;gbf;Fk;.
(rp),t;tpah[pa nryT thjpf;F gpujpthjpaplkpUe;J
fpilf;Fk;gbf;Fk;.
(b)kw;Wk; rkaj;jpw;Fk; re;jh;g;gj;jpw;Fk; Vw;w rfy
ghpfhuq;fisAk; thjpf;F mspj;J bfphp gpwg;gpf;Fk;gbf;Fk;
thjp r%fk; Nfhh;l;lh; mth;fis tzf;fkha;
gpuhh;j;jpf;fpwhh;. ”
22.The first prayer is to declare that the suit schedule properties are the
absolute properties of the plaintiff and to recover and handover the possession
of the suit second schedule property to the plaintiff by evicting the second
defendant. The second prayer is to recover the mesne profits from the second
defendant. The suit schedule property is as follows:
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C.R.P.(MD)Nos.3025 and 3419 of 2025
“ 1tJ jgrpy;
rq;fud;Nfhtpy; jhY}fh> fsg;ghFsk; fpuhkk;>
uhff;Fbfhl;by; GQ;ir rh;Nt vz;.614> Vf;fh; 3> nrz;L
93. ,jw;F khy;> nghpA+h; Nuhl;Lf;Fk; njw;F: fy;ahz
fpU\;zd; gl;lh; GQ;irf;Fk; tlf;F : Xilf;Fk; Nkw;F:
Kfk;kJ uhTj;jh; GQ;irf;Fk; Cuzpf;Fk; fpof;F.
2tJ jgrpy;
\ jhYfh> \ fpuhkk; \ fhl;by; \ GQ;ir rh;Nt
vz; 614 Vf;fh; 3 nrz;L 93y; Nky;gf;fk; Vf;fh; 2 nrz;L
72f;F khy;: nghpA+h; Nuhl;Lf;Fk; njw;F thjp
v];.vd;.mg;ghrhkpgl;lh; GQ;irf;Fk; Nkw;F>
fy;ahzfpU\;zgl;lh; GQ;irf;Fk; tlf;F Kfk;kJ
uhTj;jh; GQ;irf;Fk; Cuzpf;Fk; fpof;F.”
23.Schedule A deals with S.No.614 to an extent of 3 acres 93 cents and
it is a punja land, which is a vacant land. This plaint was filed on 12.10.1986,
whereas, in the written statement filed by the second defendant, it has been
categorically stated in paragraph No.4 that the suit schedule property was
purchased by the second defendant for a consideration of Rs.1,400/- on
21.10.1974 and thereafter, he has constructed a building worth of Rs.1,00,000/-
and had spent Rs.10,000/- for construction of Well. Further, there was a
specific plea in the written statement with regard to the measurement reflected
in the plaint and with regard to the four boundaries and the Court fee and the
dispute the claim made by the plaintiff. The relief was sought only as against
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C.R.P.(MD)Nos.3025 and 3419 of 2025
the first defendant for declaration and not against the second defendant and the
prayer in the suit confines to removal of the second defendant from the suit
second schedule property.
24.It is to be noted that two amendment applications in I.A.No.462 of
2016 in O.S.No.470 of 1986 to amend the decree was withdrawn on
08.06.2018 and the another application in E.A.No.3 of 2024 to amend the suit
schedule in the execution petition was also withdrawn. Therefore, the
plaintiffs/decree holders have not take contested the applications to amend the
prayer at two stages one before the trial Court and other before the Executing
Court. As the relief in the suit is sought only against the second defendant and
not against his legal heirs or assignees after the demise of the second
defendant, the prayer cannot be enlarged to the other defendants.
25.The judgments relied upon by the learned Senior Counsel for the
respondents with regard to the recovery of possession, as stated supra, would
show that a decree has to be enforced, however, on perusal of the judgment and
decree, which is a cryptic order, the same cannot be construed as a judgment in
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C.R.P.(MD)Nos.3025 and 3419 of 2025
nature, which is contrary to the provisions of Order 20 Rules 4, 5 and 6.
26.In the result,
(1)The Civil Revision Petitions are allowed.
(2)The order passed by the learned Principal District Munsif,
Sankarankovil, Tenkasi District, in E.A.No.34 of 2014 in E.P.No.46 of 2009 in
O.S.No.470 of 1986, dated 06.10.2025, is hereby set aside.
(3)The judgment and decree passed in O.S.No.470 of 1986, dated
12.09.2022 passed by the Principal District Munsif, Sankarankovil, is hereby
set aside.
(4)No costs.
(5)Consequently, connected miscellaneous petitions are closed.
27.02.2026
Internet :Yes/No
NCC :Yes/No
Index :Yes/No
cmr
To
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C.R.P.(MD)Nos.3025 and 3419 of 2025
The Principal District Munsif,
Sankarankovil, Tenkasi District.
N.SENTHILKUMAR, J.
cmr

Order made in
C.R.P.(MD)Nos.3025 and 3419 of 2025
27.02.2026
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