ORDER
K. Venkataraman, J.
1. The 82 years old decree Holder, who could not prosecute the decree of eviction obtained by her mother, has knocked the doors of justice by filing the Civil Revision Petition in C.R.P.((NPD)No. 3699 of 2007. The Judgment debtor, who is trying to stall the execution of the decree of eviction is also before this Court in filing the Revision in C.R.P. No. 3478 and 3942 of 2007.
2. C.R.P. No. 3478 of 2007 was filed by the judgment debtor challenging the order made in E.A. No. 136 of 2007 in E.P. No. 12 of 1993 of the learned District Munsif at Alandur. C.R.P. No. 3942 of 2007 had been filed by the above said judgment debtor, against the order dated 6.9.2007 of the learned District Munsif, Alandur made in I.A. No. 2737 of 2007 in O.S. No. 556 of 1997, in which he is the defendant. C.R.P. No. 3699 of 2007 had been filed by the landlady challenging the order made by the learned District Munsif, Alandur dated 27.07.2006 in E.P. No. 12 of 1993 in R.C.O.P. No. 4 of 1978.
3. The petitioner in C.R.P.(NPD)No. 3699 of 2007 is referred as decree Holder and the respondent thereon, namely the petitioner in the other two Revisions in C.R.P.Nos. 3478 and 3942 of 2007 is referred as Judgment debtor in this order for the sake of convenience.
4. The short facts, which are necessary for the disposal of the present revisions are as follows:
(a) The subject matter of the property was originally owned by decree holder's grandfather. He has purchased the said property by a registered sale deed dated 20.3.1946. He died on 18.11.1966. Thereafter, the property was acquired by V.K. Jayalakshmi, mother of the present decree holder. She leased out the property to one P.L.Narasimha Rao, the judgment debtor herein by a lease deed dated 23.05.1967. Later, she has filed R.C.O.P. No. 4 of 1978 before the learned District Munsif, Poonamallee, seeking eviction of the judgment debtor herein. The said R.C.O.P. had been filed under Section 10(2) (i) and (iii), Section 10(3)(a)(i) and Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act. An ex-parte order of eviction was passed on 11.01.1979. Aggrieved over the same, the judgment debtor had filed C.M.A. No. 15 of 1979 before the appellate authority. By an order dated 15.12.1979, the said C.M.A. No. 15 of 1979 was allowed and remanded back to the Rent Controller.
(b) Again, an ex-parte order of eviction was passed due to non appearance of the judgment debtor on 18.06.1982. Thereafter, the judgment debtor filed an application in I.A. No. 89 of 1982 to set aside the ex-parte order of eviction on 14.06.1982. The trial Judge dismissed the said application on 18.09.1982. The judgment debtor preferred an appeal in R.C.A. No. 36 of 1982 before the Subordinate Judge, Chengalpattu. The learned Subordinate Judge, Chengalpattu dismissed the said appeal by his order dated 09.11.1983 thereby confirming the order of the Trial Judge. Aggrieved over the same, the judgment debtor preferred a revision in C.R.P. No. 5584 of 1983 before this Court. The said Civil Revision Petition was dismissed for default on 26.2.1985.
(c) Later, the judgment debtor filed an application in C.M.P. No. 6912 of 1985 to condone the delay in filing the application to restore the C.R.P. No. 5584 of 1983, which has dismissed for default. The same was also dismissed by this Court by an order dated 17.02.1986.
(d) Thereafter, Smt.V.K. Jayalakshmi, Mother of the present decree holder filed E.P. No. 12 of 1993 before the District Munsif, Poonamallee for executing the order of eviction obtained in R.C.O.P. No. 4 of 1978. The said E.P was transferred to the file of District Munsif, Tambaram and the Judgment debtor filed E.A. No. 11 of 1993 under Section 47 of C.P.C. on the ground that the E.P. cannot be executed. The said E.A. No. 11 of 1993 was allowed consequent to the dismissal of E.P. No. 12 of 1993. Later, E.A. No. 17 of 1994 was filed by the decree holder to restore E.P. No. 12 of 1993 and the same was dismissed by the trial Judge on 19.01.1995. Questioning the said order, the decree holder preferred the revision before this Court in C.R.P. No. 1388 of 1995 and the said revision was allowed on 19.02.1998 and hence E.P. No. 32 of 1991 was restored on file.
(e) Thereafter, the judgment debtor filed E.A. No. 75 of 2002 under Section 47 of C.P.C. on 12.03.2002. Notice has been ordered to the mother of the decree holder. Later on 25.09.2002, the original decree holder V.K. Jayalakshmi died. E.A. No. 48 of 2003 was filed to implead the legal representative namely, the present decree holder. The said E.A. No. 48 of 2003 was allowed and the present decree holder was impleaded as legal representative of original decree holder one V.K. Jayalakshmi. Consequential petition has been filed by the decree holder in E.A. No. 115 of 2003. Counter affidavit filed by the present judgment debtor in the said E.A. and by an order dated 07.10.2003, the said E.A. was allowed. The present judgement debtor filed review application to review the order in E.A. No. 115 of 2003 along with the conde delay petition which was later dismissed in the second month of 2004. The present decree holder, thereafter filed amendment in the execution petition and the judgment debtor carried out the amendment in E.A. No. 75 of 2002.
(f) Thereafter, the decree holder filed C.R.P. No. 1718 of 2006 before this Court to struck down the E.A. No. 75 of 2002 filed by the judgment debtor under Section 47 of C.P.C and this Court by an order dated 13.04.1007 struck down the E.A. No. 75 of 2002 and further ordered for an early delivery of possession of property. The judgment debtor preferred S.L.P.(C) No. 8125 of 2007 before the Hon'ble Apex Court. However, the said S.L.P. filed by the judgment debtor was dismissed on 14.05.2007. In the mean while, in the execution petition, the judgment debtor has filed proof affidavit on 11.06.2007 and filed list of witnesses on 26.06.2007. Thereafter, the judgment debtor filed E.A. No. 122 of 2007 questioning the vakalat of the decree holder Smt.N.Krishnaveni on certain technical grounds. The said application was dismissed by the trial Court on 06.09.2007.
(g) Later, the judgment debtor filed E.A. No. 155 to 158 of 2007, seeking to re-open the evidence of P.W.1, recall P.W.1 and for marking additional documents etc. The decree holder had not objected the said applications and the same were allowed on 21.09.2007. Later, the decree holder filed E.A. No. 136 of 2007 on 24.09.2007 to re-open the list of witnesses 2 to 7. The said application was dismissed in respect of reopen of list of witnesses No. 2 to 7 and allowed only in respect of re-opening of list witness No. 10 alone, by an order dated 24.09.2007 and C.R.P. No. 3478 of 2007 was filed against the said order dis-allowing to re-open list witnesses 2 to 7. The judgment debtor, thereafter filed E.A. No. 227 of 2007, seeking for the decree holder to produce the succession certificate.
(h) In the meantime, the decree holder filed the suit in O.S. No. 556 of 1997 before the District Munsif, Alandur for permanent injunction restraining the judgment debtor from adding or altering or proceeding with any sort of construction in the suit property. In the said proceeding, the judgment debtor filed an application to strike off the vakalat filed by the two advocates namely V. Muthuraman and G.Vijayakumar on behalf of the present decree holder in the said suit in O.S. No. 556 of 1997. The said application was dismissed by the Court below and C.R.P. No. 3942 of 2007 was filed by the Judgment debtor.
(i) Thereafter, the decree holder, against the order of the learned District Munsif ordering issue of summons to the witnesses cited in the list of witnesses dated 27.06.2007 had filed C.R.P. No. 3699 of 2007.
5. On the above backdrop of the matter, now let us consider the grievances of the decree holder and the judgment debtor.
6. The learned Counsel appearing for the decree holder has raised the following contentions.
a. The judgment debtor is dragging on the proceedings thereby preventing the decree holder from enjoying the fruits of the decree on one pretext or other and the same cannot be entertained by this Court.
b. When the present decree holder's mother namely, V.K. Jayalakshmi obtained an order of eviction against the judgment debtor in R.C.O.P. No. 4 of 1978 before the learned District Munsif, Poonamallee and the same is sought to be executed by her daughter, the present decree holder, the same cannot be stalled by the judgment debtor on one pretext or the other.
c. The executing Court cannot go beyond the decree obtained in R.C.O.P. No. 4 of 1978 and hence the judgment debtor cannot be allowed to file one application after another on untenable grounds.
d. When the judgment debtor filed E.A. No. 75 of 2002 under Section 47 of C.P.C. raising all untenable grounds thereby raising a point that the decree obtained in R.C.O.P. No. 4 of 1978 cannot be executed and when the said E.A. No. 75 of 2002 was struck down by this Court in C.R.P. No. 1718 of 2006, by an order dated 13.04.2007, which was confirmed by the Hon'ble Apex Court by an order dated 14.05.2007 in S.L.P. No. 8125 of 2007, the execution petition filed by the decree holder, automatically should have been allowed in favour of the decree holder thereby ordering delivery of the property in question. Instead the learned Trial Judge ought not to have entertained the list of witnessed filed at the end of the judgment debtor and the innumerable applications filed by the judgment debtor raising untenable grounds.
7. Thus, the sum and substance of the argument of Mr.R.Srinivas, learned Counsel appearing for the petitioner is that the executing Court has gone beyond the scope and jurisdiction vested in it, which requires consideration by this Court.
8. Per Court, Mr.Ashok Menon, the learned Counsel appearing for judgment debtor contended that
a) the eviction order obtained by the mother of the decree holder cannot be executed validly since no valid decree had been obtained in the said proceedings.
b) the judgment debtor cannot be prevented from raising objection as admissible in Procedure code.
c) the person, who is prosecuting the execution petition, is not the decree holder.
d) The eviction petition filed against a tenant, who is running a School in the petition premises is not maintainable and hence the order of eviction cannot be enforced. Thus, the learned Counsel appearing for the judgment debtor sought for the dismissal of C.R.P. No. 3699of 2007 and sought for allowing the C.R.P. No. 3478 and 3942 of 2007.
9. On the basis of the above referred pleadings and the submissions made by the learned Counsel appearing for the decree holder and the judgment debtor, now let me discuss and decide the matter in issue.
10. In C.R.P. No. 3942 of 2007, the judgment debtor is canvassing the correctness or otherwise of the order made in I.A. No. 2737 of 2007 in O.S. No. 556 of 1997. Admittedly, O.S. No. 556 of 1997 was filed by the decree holder against the judgment debtor for permanent injunction restraining him from adding or altering or proceeding with any sort of construction in the suit property. In the said suit, the judgment debtor being the defendant had filed I.A. No. 2737 of 2007 for striking off the vakalat filed by the advocates namely, V. Muthuraman and G.Vijayakumar in the said suit. The reason for filing such application is set out in short hereunder:
(a) The advocates, who have filed vakalat in the above suit in the cause title mentioned as Mrs.V.K. Jayalakshmi died, represented by her attorney Mr.Seetharaman. Admittedly, in the vakalat, the name of N.Krishnaveni, present decree-holder does not find place in the cause title. Thus, the act of the counsel amounts to professional misconduct. The petitioner, therefore, filed the said I.A. No. 2737 of 2007 for striking off the vakalat filed by the said advocates in the said suit.
(b) Counter affidavit was filed by the decree holder N.Krishnaveni, wherein, the following facts have been set out: Originally her mother was the absolute owner of the suit schedule property and the judgment debtor was inducted as a tenant under her mother. She filed R.C.O.P. No. 4 of 1978 against the judgment debtor and the same has been decreed. Consequently, E.P. No. 12 of 1993 had been filed. After the demise of her mother, she engaged the above referred counsels as her advocates to contest the case. There is no professional misconduct in this regard. After filing the petition to implead the present decree holder as the legal heir of the decree holder, the judgment debtor had filed his counter and the same was allowed. No appeal has been preferred against the said order. Narrating the above facts, the decree holder sought dismissal of the said application in I.A. No. 2737 of 2007.
(c) On considering the above facts, the Court below, had rejected the contention of the judgment debtor and dismissed the application in I.A. No. 2737 of 2007 by an order dated 06.09.2007.
11. The learned Trial Judge dismissed the said application on the following grounds.
a) The suit was filed by Mrs. V.K. Jayalakshmi, who later died and hence the daughter N. Krishnaveni filed an application to implead herself as a party to the suit in I.A. No. 2438 of 2002. In the said impleading application, advocates V. Muthuraman and G.Vijayakumar filed their vakalat on behalf of N.Krishnaveni, the decree holder. The said application was allowed.
b) No doubt in the vakalat, the name of Mrs.N.Krishnaveni was not mentioned in the cause title. But the same cannot be a ground for holding that the vakalat is improper in execution since the signature of the executant is available in the vakalat and the cause title of the suit was correctly mentioned in the vakalat. The executant has confirmed the execution of vakalat by filing a counter in the said application.
c) Subsequent to the filing of the vakalat, several applications and counters were filed on behalf of the executant N.Krishnaveni through the very same advocates.
d) The suit is of the year 1997 and connected E.P. No. 12 of 1993 is also pending before this Court.
On the above reasoning, the application filed by the judgment debtor in I.A. No. 2737 of 2007 was dismissed.
12. The said reasoning given by the Court below, is totally on sound footing. Merely because in the cause title only the name of the deceased V.K.Jayalakshmi has been shown and the name of the present decree holder was not shown, cannot be a ground to reject the vakalat. As rightly pointed out by the Court below, the signature of the executant is available in the vakalat and more than that she has confirmed the execution of the vakalat by filing the counter affidavit in the said proceedings. In the applications taken out by the judgment debtor, counter affidavit was filed on behalf of the executant N.Krishnaveni through the very same advocates. While so, the technical plea that has been taken by the judgment debtor cannot be accepted. Perhaps, this is one mode of dragging on the proceedings thereby preventing the decree holder from taking possession of the property in pursuant to the decree of eviction obtained against the judgment debtor.
13. In the result, I am not inclined to accept the contentions raised at the end of the judgment debtor and the order of the learned District Munsif at Alandur in the said I.A. referred to above is liable to be confirmed and accordingly confirmed.
14. C.R.P. No. 3478 of 2007, has been filed by the judgment debtor against the order made in E.A. No. 136 of 2007 of the learned District Munsif, Alandur dated 24.09.2007. The said E.A. was filed by the judgment debtor against the dismissal of the said E.A., which has been filed to re-open the list of witnesses from 2 to 7 and permit him to take necessary steps to serve summons on them.
15. The facts narrated by the judgment debtor for filing such application in E.A. No. 136 of 2007 in nutshell is given under:
(a) The judgment debtor filed list of witnesses memo on 26.09.2007 and taken necessary steps. Due to their inability, the witnesses though received summons could not appear before the Court. Hence, the judgment debtor filed application praying to give reasonable time for witnesses to depose their evidence before the said Court. The said petition was returned for want of maintainability. Thereafter, for the appearance of the witnesses, the matter was posted on 27.06.2007 onwards and the evidence had been closed abruptly on 21.07.2007. The examination of the list witness No. 10 has been closed abruptly on 17.08.2007 stating that the steps were not taken by the petitioner. Thus, narrating the above facts, the said I.A. was filed.
(b) Counter affidavit filed on behalf of the decree holder, in nutshell, is as follows:
The judgment debtor has given the list of witnesses on 26.06.2007 and has paid batta on 26.06.2007. The matter was re posted to 29.06.2007. The first witness in the list was examined as R.W.2 and the matter was adjourned to 02.07.2007. On that day, the judgment debtor filed batta for the other witnesses and the same matter was posted to 03.07.2007. The witness summons were served on them and they failed to appear before the Court. Since, the judgment debtor had failed to take necessary steps for all the witnesses, the Court below closed the evidence on the side of the judgment debtor on 18.08.2007 and the matter was posted for arguments. The application had been filed only to drag on the proceedings. Thus, the counter affidavit sought for the dismissal of the said E.A.(c) The learned trial Judge considered the matter in extenso and dismissed the application preferred by the judgment debtor.
(d) Admittedly, this Court by an order dated 13.04.2007 in C.R.P.Nos. 1718 to 1719 of 2006 had directed the executing Court to dispose of the E.P. as expeditiously as possible.
(e) Later on 07.06.2007, the learned Counsel appearing for the decree holder had endorsed that no oral evidence on the side of the decree holder and the evidence as such has been closed. Thereafter, the matter seems to have been adjourned to 19.06.2007 for the evidence of the judgment debtor. Later, at the request of the learned Counsel appearing for the judgment debtor, the matter was adjourned to 11.06.2007. On 11.06.2007, proof affidavit on behalf of the judgment debtor seems to have been filed. Exs.R1 to R4 were marked. Thereafter, only one witnesses namely R.W.1 was examined. Thereafter, on the basis of the memo filed by the judgment debtor listing out the witnesses, the matter seems to have been adjourned to 27.06.2007 for further witnesses on the side of the judgment debtor. Out of the 10 witnesses cited in the list of witnesses filed at the end of the judgment debtor, one witness was examined as R.W.2. Later batta seems to have been paid for the list witnesses 2 and 3. But, they were not present when the matter was called on 03.07.2007. Thereafter, the matter seems to have been posted 07.07.2007, 06.07.2007 and 10.07.2007. Though the batta has been served on the witnesses given by the judgment debtor, they have not appeared before the Court below. The Court below had elaborately discussed about the various dates on which the matter was listed for examination of the witnesses cited by the judgment debtor.
(f) Considering the above facts and considering the fact that this Court in C.R.P. No. 1718 and 1719 of 2006 had directed the executing Court to dispose of the E.P. as expeditiously as possible, the application preferred by the judgment debtor to re-open the list of witnesses 2 to 7 was dismissed and the petition was allowed in respect to re-open of list witness No. 10 alone and summon were directed to be issued to the list witness No. 10 on payment of witness batta.
(g) The above narration of the facts will clearly establish that the intention of the judgment debtor is only to drag on the proceedings and it is manifestly clear that he does not want the decree holder to enjoy the fruits of the decree. The Court below therefore justified in rejecting the request of the Judgment debtor to re-open the case for the purpose of examining list witnesses Nos. 2 to 7.
(h) In the result, I am unable to interfere with the said order of the learned trial Judge made in E.A. No. 136 of 2007 dated 24.09.2007.
16. Now, we are left with only the other revision namely C.R.P. No. 3699 of 2007 filed by the decree holder. The said revision had been filed, challenging the order of the learned District Munsit, Alandur dated 27.06.2007 in E.P. No. 12 of 1993 in R.C.O.P. No. 4 of 1978 accepting the list of witnesses filed by the respondent and ordering issue of process for those witnesses with a further direction to the learned District Munsif, Alandur to close all the existing I.As with a further direction to the executing court not to entertain any further application at the instances of the Judgment debtor and to deliver the vacant possession of the property in question.
17. (a). The contention raised at the end of the decree holder is that when this Court has struck down the application filed by the judgment debtor under Section 47 C.P.C. in E.A. No. 75 of 2007 in C.R.P. No. 1718 of 2006, the judgment debtor cannot be allowed to raise the same contentions in the execution petition laid by the decree holder. Further, the reason for examining the witnesses in execution petition has not been assigned. The executing Court cannot go beyond the decree that has been granted in favour of the decree holder. Hence, it will be a wasteful exercise to examine the witnesses sought to be summoned by the judgment debtor.
(b) On the other hand, the learned Counsel appearing for the judgment debtor submitted that though this Court had struck down the E.A. No. 75 of 2002 filed at the instance of the judgment debtor under Section 47 of C.P.C, the judgment debtor has got right to question the decree obtained against him on the ground of nullity. Further, according to the learned Counsel appearing for the judgment debtor, since the school is being run in the suit property , eviction petition cannot be filed in view of the prohibition made in Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960as amended by Act 23 of 1973. In view of the fact that the judgment debtor was running a school the eviction petition that has been filed by the mother of the present decree holder is a nullity and any order that has been passed in the eviction petition cannot be executed.
(c) In the backdrop of the submission made by the learned Counsel appearing for the decree holder and the judgment debtor, now let us see what was the plea that has been taken by the judgment debtor in his application under Section 47 of C.P.C.
(d) In nutshell, the following grounds have been raised by the judgment debtor in his application under Section 47 of C.P.C.
(i) The said E.P. is based on the exparte order, obtained by a stranger V.V.Ramamurthy fraudulently with his exparte evidence while V.R.Raghuram was on record in the R.C.O.P. No. 4/78 as power agent of the decree holder.
(ii) The judgment debtor is the owner of the petition (school) premises with his several superstructures, paying property tax and hence this Hon'ble Court has no jurisdiction to entertain the above E.P. and hence the E.P. is liable to be dismissed.
(iii) The E.P. is liable to be dismissed as there is title disputes in between the decree holder and judgment debtor.
(iv) The amended E.P. which does not have proper description of the schedule of property as required by law cannot be entertained by this Hon'ble Court and hence the E.P. is liable to be dismissed.
(v) N.Krishnaveni, the alleged legal representative of V.K.Jayalakshmi, deceased decree holder have not proved that she is daughter of V.K.Jayalakshmi as alleged in the said invalid will by producing either her legal heir certificate or her succession certificate from competent court of law.
(vi) N.Krishnaveni has not produced the alleged unregistered original will said to have been executed by the deceased V.K.Jayalakshmi in favour of her in respect of the petition premises. The notarised xerox copy of the said alleged will secondary evidence cannot be necessary proof for the execution of the said alleged will in the court of law.
(vii) N.Krishnaveni has not examined any one of the witnesses in the alleged notarised xerox copy of the unregistered will as envisaged by Section 68 of Evidence Act which falls short of legal requirement of the said will and hence it cannot be taken into consideration for the purpose of establishing the claim of N.Krishnaveni.
(viii) The alleged unregistered will is not a valid document as it does not contain the signature of the testator in every page of the said alleged will.
(ix) The executors in the said alleged will alone can prosecute any legal proceedings and hence the prosecution of the above E.P. by N.Krishnaveni is contrary to law and the executors also cannot prosecute without obtaining an order of Letters of Administration with the original will annexed from a competent Court of law.
(x) There is irregularities in filing her impleading petition E.A. No. 48 of 2003 in E.P. No. 12 of 1993 and the amendment petition E.A. No. 115 of 2003 in E.P. No. 12 of 2003 and hence impleading Mrs.N.Krishnaveni as legal representative of the deceased decree holder is not maintainable.
18. As stated already, the revision has been filed before this Court in C.R.P. No. 1718 and 1719 of 2006 and Paragraph 9 to 16 of the order of this Court in the said revisions are usefully extracted hereunder:
Para 9. Keeping in mind the proposition of law laid down by the Apex Court, if we look at the very grounds or objections (E.A. No. 75 of 2002), it would be evident that they do not disclose any factor for nullifying the order of eviction or disclose any lack of jurisdiction. Most of the points raised in the E.A have been already raised in the RCOP in the form of counter. The other points are objections which ought to have been raised and agitated in the main RCOP proceedings, which the respondent has failed. Since the respondent had not contested the RCOP and allowed an order of eviction to be passed and also allowed the same to be confirmed by this Court in CRP. No. 5584 of 1983, none of the points can be now allowed to be raised in the E.A.75 of 2002. As per the decision of the Supreme Court, cited supra, the Executing Court cannot hold an enquiry into the validity of the order of eviction as a nullity and without jurisdiction, unless there is a material defect apparent on the face of the record. Therefore, if the dictum of the Apex Court is to be followed as it is a law of the country under Article 142 of the Constitution of India, then every subordinate courts ought to have apply the same, examine the contents of the same carefully and refuse to number the application filed under Section 47 CPC to take on file in fit cases.
Para 10. Taking cognizance of a plaint or petition or application is not ministerial act. The Judicial Officer has to apply his mind before taking action on it. A summons can be issued only after application of mind. Therefore, the Executing Court ought not to have entertained the E.A.75 of 2002 and rejected the same at the threshold and prevent mischief since it prayed for a relief which could never be granted by it. It is to be seen that the respondent asking for unsustainable reliefs has been squatting on the property and preventing and obstructing the execution by filing petition under Section 47 CPC.
Para 11. It is also to be noted that, even though the order of eviction is an exparte order, unless the same is set aside it is also bind. In the present case the exparte order has been confirmed by the appellate court and also by this Court and it has become final and therefore, the respondent cannot challenge the same in an application filed under Section 47 CPC as a nullity. Further, the respondent cannot raise objection regarding change of Power agents or impleadment of L.Rs in an application filed under Section 47 CPC, instead he ought to have raised the same at the appropriate proceedings and if he had not done so, the orders though interlocutory will become final. So also, the plea of the respondent that the petitioner had not produced a Succession Certificate and the Will has not been probated is untenable. Succession Certificate is required only movable properties. Further the Will has been executed at New Delhi and it does not required to be probated in this Court. In fact, the legal heir ship certificate has been produced by the petitioner and the Will has also been produced by Court. In present case, after the revision petitioner has been impleaded as L.R in the said E.A., the consequential amendments were made by the petitioner. But the respondent due to such impleadment filed an amended petition copy. In the said amended petition the respondent instead of stopping with making the consequential amendments, has added some portions by way of interpolation and additions which are not sustainable. Thus by making such interpolation and additions, the respondent wants to make an enquiry in the E.P, regarding the impleadment of L.R of the decree holder which is impermissible. It is also a gross abuse of process of the Court and the act of deliberately sneaking in the pleadings without the permission of the court and thus gaining an unfair advantage over the litigant on the other side also amounts to playing a fraud on the court. In it is held that once a pleading filed, it becomes a part of the record of court, it cannot be modified, substituted, amended or withdrawn without the leave of the court. Further, an amendment to pleadings can be done only by making a prayer through a petition filed under VI Rule 17 of CPC stating exactly what is proposed to be omitted from, substituted, altered in, or added to the original pleading, otherwise court cannot exercise its power and discretion of permitting amendment effectively. Therefore, the amendments carried out by the respondent in the E.A., and also the prayer of the application in extenso without leave of the court and concealing and camouflaging the interpolations under the grab of a consequential amendment is unlawful and illegal as has been held in since new plea cannot be permitted to be introduced in the guise of a consequential amendment and the same is liable to be struck down.
Para 12. In Ravinder Kaur v. Ashok Kumar and Anr. reported in 2002(8)SCC 289 also the Honourable Apex Court while dealing with a similar situation, held that under Section 47 CPC an issue that was never raised in the original ejectment proceedings or in the RCA or Revision cannot be permitted to be re-agitated in the execution proceedings. It is also categorically observed in the said decision that raising a dispute in regard to boundary of the suit property is only a dispute in regard to boundary of the suit property is only a bogey to delay the eviction by the abuse of the process of the Court. Courts of law should be careful enough to see through such diabolical plans of judgement debtors to deny the fruits of the decree obtained by them. These types of errors on the part of the judicial forums only encourage frivolous and cantankerous litigation causing law's delay and bringing bad name to the judicial system.
Para 13. In Arthur Theodore James and 2 Ors. v. Mrs. Hanna Rosaline and 4 Ors. reported in 1999(1) L.W. 222 it has been held by this Court as follows:
Whatever may be the source of information, if this Court is satisfied that great prejudice has been done to a litigant and that injustice is being perpetuated this Court is duty bound to take necessary action to prevent repetition of the same. After all, courts are there only to do justice between the parties, and the contention that that could be done only in a particular proceeding, is only a technical argument which also amounts to obstruction to the cause of administration of justice. Section 151 CPC and Article 227 of the constitution give ample powers to courts to see that the Subordinate Courts act within their limits and no party to a litigation also abuses his position as a litigant through process of Court. If applications after applications are filed in order to prevent a successful decree holder from getting the fruits of the decree and the court also supports such action by entertaining such applications, it will only mean that the Court is also impliedly perpetuating the abuse of process. If a court does not prevent such abuse, it ceases to be a court of law.
Para 14. In another decision reported in 2002(2) MLJ 433, again this Court reiterated as follows:
This is a case where the judgment debtor and his kith and kin have been successfully keeping the owner of the property at bay by adopting frustrating tactics. If courts do not step in and deal with a situation like this firmly, the very purpose for which courts of law have been constituted would be defeated.
Para 15. In Alagar @ Savugan .v. A. Baluchami reported in 1999 (2) MLJ 395, it has been held as follows:
This is a case where the decree holder had been driven from pillar to post by the machinations of the respondents and they have been successfully thwarting his efforts by some proceedings in court. I am clearly of the view to get away with what they have been doing. The order of the lower court dismissing the application for removal of obstruction is clearly erroneous and cannot be sustained.
Para 16. All the above decisions are squarely applicable to the facts of the present case, as in the present case on hand also, the decree holder could not enjoy the fruits of the decree even after 25 years by the dilatory tactics of the respondent who has been filing application or appeal or revision and has been successfully thwarting on the property and the court cannot shut its eyes to such recalcitrant litigants otherwise it would amount to impledly perpetuating the abuse of process and if a court does not prevent such abuse, it ceases to be a court of law. In these circumstances, I am of the view that the very application filed under Section 47 CPC in the peculiar facts and circumstances of the case is not maintainable and the same has to be rejected following the dictum of the Honourable Supreme Court in Vasudev Dhanjibhai Modi. v. Rajabhai Abdul Rehman and Ors. : [1971]1SCR66 . Consequently, the trial court shall proceed with the Execution Petition and see to it that the decree holder is put in possession of the property as expeditiously as possible since already two decades have gone by after the eviction order has been granted.
19. Thus, this Hon'ble Court had over ruled all the contentions that has been taken at the end of the judgment debtor and struck off the application filed by the judgment debtor under Section 47 of C.P.C and directed the executing Court to proceed with the E.P. for early delivery of possession of the property to the decree holder. Thereafter, the judgment debtor seems to have preferred an appeal before the Hon'ble Apex Court in S.L.P. (C) No. 8125 of 2007 and the same was dismissed by the Hon'ble Apex Court by its order dated 14.05.2007.
20. Thus, the entire grounds raised at the end of the judgment debtor has been considered by this Court and has rejected the same and directed the Court below to proceed with the E.P. for delivery of the property to the decree holder. Even, thereafter, the judgment debtor has taken every step to stall the delivery of possession. He has given list of 10 witnesses to examine on his side in the execution petition. The Court below ought not to have entertained the list of witnesses without the reason being assigned for examining those witnesses. On an eviction order obtained by the decree holder and when the same is sought to be executed, several grounds have been raised in the application under Section 47 of C.P.C and when the same has been struck off by this Court, it is not known for what reason the judgment debtor wants to examine 10 witnesses in the execution petition. It is a common knowledge that the executing Court cannot go beyond the decree. In spite of the same, the Court below had ordered summons to all the witnesses. The judgment debtor was able to examine only one witness out of 10 witness and the evidence in respect of witnesses 2 to 7 were closed on the ground that in spite of the summons, they have not appeared before the Court below for giving evidence. With regard to the two witnesses, they could not be served. Thus, the Court below has given sufficient opportunity to the judgment debtor and in spite of the same, the judgment debtor has not taken any earnest steps in examining those witnesses.
21. The above narration of the facts will clearly prove that the judgment debtor is able to stall the delivery of possession on one pretext or other or on one reason or other. It is obvious that he is trying to prevent the decree holder from enjoying the fruits of the decree.
22. Yet another contention of the learned Counsel appearing for the judgment debtor is that the eviction petition itself is not maintainable, in view of the fact that because the judgment debtor is running an educational institution and there is a prohibition from initiating eviction proceedings in respect of the buildings, where educational institution is being run. The said submission of the learned Counsel cannot be countenanced for more than one reason.
(a) First of all, the judgment debtor is not running any educational institution as on date. In fact, an Advocate Commissioner, who was been appointed in the matter has found that the judgment debtor is not running any educational institution in the premises, which has been let out.
(b) Secondly, it is not the case of the judgment debtor that the educational institution which was being run by him was recognised by the Government. Absolutely, the judgment debtor has not produced any document to show that for running the educational institution any order of recognition ordered by the Government. In Ramachandran v. Kamalchand Baid 1979 L.W.(S.N.) 37, it has been held that in order to apply the provision of Section 10(4)(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended, the requisites to be satisfied are:
There must be letting, it must be for use as an educational institution and the building should still be used for that purpose, and, further, the institution should be one that has been recognised by the Government or any authority empowered by the Government in that behalf, and lastly, such recognition must continue at the relevant date. (c) As stated already, it is not the case of the judgment debtor that the building is still used for the educational purpose and that it has been recognized by the Government or any authority empowered in that behalf and such recognition continues as on date. Hence, the contention of the learned Counsel in this regard has to be rejected in toto.
23. The learned Counsel appearing for the decree holder relied on a decision reported in : [1971]1SCR66 (Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors.), wherein the Hon'ble APex Court has held that the executing Court cannot go beyond the decree and Paragraph 6 of the said judgment is usefully extracted hereunder:
Para 6. A court executing a decree cannot go behind the decree; between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
24. However, the learned Counsel appearing for the judgment debtor relied a decision reported in : [1977]3SCR60 (Sunder Dass v. Ram Parkash). More particularly, Paragraph 3 of the said judgment, which is reproduced hereunder:
Para 3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree being null and void, there would really be no decree at all.
25. Yet another decision that has been cited by the learned Counsel appearing for the judgment debtor which is reported in : AIR1981Mad354 (V.S. Alwar Ayyangar v. Gurusamy Thevar), Paragraph 5 of the said judgment is usefully extracted hereunder:
Para 5. As for Mr.Alagar's argument, it is no doubt fundamental that the executing Court cannot go behind the decree. But it is also fundamental that it is open to a judgment debtor to resist execution on the ground that the judgment against him is a nullity. The executing Court can very well decline to execute a decree if it is satisfied that it is a nullity. When it does so, it is not to be regarded as going behind the decree, for the simple reason that there is no decree at all to go behind. The stand of the judgment debtor in this case is that in view of Section 16-A, the decree for injunction is a nullity.
By citing the said judgments, learned Counsel appearing for the Judgment-debtor contended that since the decree obtained in the eviction proceedings is non-est in law, the same cannot be allowed to be executed. But, I am unable to accept the contention raised by the judgment debtor since he has not pleaded and established that the decree of eviction is not valid and non-est in law.
26. The learned Counsel appearing for the judgment debtor made yet another submission, namely that since V.K.Jayalakshmi had filed the rent control proceedings against the judgment debtor and later she died, the present decree holder cannot maintain the execution petition unless and otherwise succession certificate is obtained by her.
27. In this connection, the learned Counsel appearing for the judgment debtor relied on the following decisions:
1. : AIR1988Mad117 (Muniappa Nadar and Ors. v. K.V. Doraipandi Nadar and Anr.)
2. (Smjt.Kariyamma and Ors. etc., v. The Assistant Commissioner and Land Acquisition Officer)
3. (Sangappa Mallappa Kuri v. Special Land Acquisition Officer, Bagalkot) and
4. AIR 1999 MAD 374 (I. Basha Khan v. K. Selvaraj and Ors.)
28. I am unable to countenance the said arguments of the learned Counsel appearing for the judgment debtor for the following reasons:
(a) First of all, in pursuant to the eviction order obtained by V.K. Jayalakshmi, she had filed E.P and the present decree holder had filed application to implead herself as legal representative and the same has been allowed by the executing Court. In view of the said position, the present decree holder need not obtain any succession certificate. Even the judgments referred to by the learned Counsel appearing for the judgment debtor makes this position very clear.
(b) Secondly even during the life time of original decree holder, she has laid the execution petition and after her death, the present decree holder is prosecuting the said execution petition, as legal representative of the original decree Holder. Hence, there need be no necessity to obtain succession certificate. In AIR 1999 MAD 374 (I. Basha Khan v. K. Selvaraj and Ors.), the learned Judge of this Court held so and Paragraph 3 is usefully extracted hereunder:
Para 3. The execution proceedings cannot abate on the death of the deceased decree holder, in view of Order 22 Rule 12 of the Code of Civil Procedure, and the legal representatives can therefore continue the proceedings without filing separate Execution petition by substitution themselves under Section 146 and Order 21, Rule 12 of the Code. Only if they want to file a fresh application they have to comply with the requirement of Section 214 of the said Act.
(c) Furthermore, the judgment debtor had not preferred any appeal against the order passed by the executing Court in E.A. No. 48 of 2003 allowing the application preferred by the present decree holder for impleading herself as legal representative. In fact, the decree holder filed a consequential application for amendment in E.A. No. 115 of 20203 and the same was allowed on 07.10.2003. Review application filed against the said order by the judgment debtor along with an application to condone the delay was also dismissed. The present decree holder filed an amended execution petition and the present judgment debtor had also carried out the amendment in E.A. No. 75 of 2002 which has been filed by him under Section 47 of C.P.C. While so, the contention of the learned Counsel appearing for the judgment debtor that the present decree holder ought to have obtained succession certificate and thereafter she should have impleaded herself as legal representative in the execution petition is for fetching.
29. Yet another contention that has been raised at the end of the judgment debtor is that the mere dismissal of S.L.P. without giving any reason will not merge with the order of this Court. Furthermore, the learned Counsel submitted that mere dismissal of the S.L.P does not mean, the impugned judgment is affirmed and hence does not operate as a resjudicata. To this preposition, the learned Counsel appearing for the judgment debtor relied on a decision reported in 2000(2) UJ 1158 (SC) (Kunhayammed and Ors. v. State of Kerala and Anr.). The question that came consideration before the Hon'ble Apex Court was that where the summary dismissal of the S.L.P. will take away the right of the High Court, Tribunal or Forum to review its own order if grounds for exercising of review jurisdiction are shown to exist. In that circumstances, the Hon'ble Apex Court has held that mere rejection of S.L.P. does not take away the jurisdiction of the Court, Tribunal or Forum, to revise its own order, if grounds for exercising of review jurisdiction are shown to exist because of dismissal of S.L.P., which does not contain any reason.
30. Hence, the judgments cited by the learned Counsel appearing for the judgment debtor may not be of any relevance for the purpose of this case. In the case on hand, this Court had on an earlier occasion struck off the defence taken by the judgment debtor in his application under Section 47 of C.P.C and the S.L.P. that has been filed by the judgment debtor has been dismissed in limini. Though the said order will not merge with the order of this Court, the order of this Court still stands good, since, the order of this Court has not been reviewed later.
31. The other judgment that has been cited by the learned Counsel appearing for the judgment debtor is reported in AIR 2004 S.C.1084 (Ramnik Vallabhdas Madhvani and Ors. v. Taraben Pravinlal Madhvani). That is the matter, where against the preliminary decree, S.L.P. was filed and the same was dismissed. Thereafter, final decree was passed by the Hon'ble High Court and the same has been appealed before the Apex Court. In those circumstances, the Hon'ble Apex Court held that it can go into the legality and the correctness of the impugned judgment including the rate of interest awarded in the preliminary decree. But the case on hand is entirely different. As stated already, the defence taken by the judgment debtor under Section 47 of C.P.C has been struck off by this Court and the S.L.P has also been dismissed. Thus, the judgments cited by the learned Counsel appearing for the judgment debtor has no relevance as far as the case on hand.
32. However, one thing that has to be seen while considering the Civil Revision Petition filed by the decree-holder namely, the decree holder has come forward with the revision in C.R.P. No. 3699 of 2007 against the order of the learned District Munsif, Alandur dated 27.06.2007 in accepting the list of witnesses and ordering issuance of process for those witnesses. The said Civil Revision Petition has been filed questioning the said order after the summons have been sent to the witnesses and one witness was examined. Furthermore, after the closing of the evidence on the side of the judgment debtor, in view of the non appearance of the witnesses 2 to 7, the judgment debtor filed the application in E.A. No. 136 of 2007 to re-open the list of witnesses 2 to 7 and an order has been passed on 24.09.2007 rejecting the claim of the judgment debtor to re-open the list of witnesses 2 to 7 and allowed the petition in respect of re-open of the 10th witness5 alone. The said order reopening the case for the purpose of examining 10th witness is not challenged by the decree Holder. Hence, I am unable to set aside the order of the learned District Munsif, Alandur dated 27.06.2007 in E.P. No. 12 of 1993 accepting the list of witnesses filed by the judgment debtor ordering issue of process for those witnesses at this stage. Hence, I am constrained to take the view that the said witness (10th witness) has to be permitted to be examined on the side of the judgment debtor.
33. In view of the stated position, I uphold the order of the learned District Munsif, Alandur dated 24.09.2007 in E.A. No. 136 of 2007 in E.P. No. 12 of 1993, rejecting the claim of the judgment debtor to re-open the list of witnesses 2 to 7 and allowing only in respect of re-opening the list witness No. 10 alone and summons to be issued to the said witnesses. The judgment debtor shall not be permitted to examine any other witness, except witness No. 10. Thus, C.R.P. No. 3699 of 2007 is disposed of with the direction to the learned District Munsif, Alandur to permit only the list witness No. 10 alone to be examined on the side of the judgment debtor and he shall not be allowed to examine any other witness.
34. In fine, I am constrained to pass the following order in all the revisions.
1. The order of the learned District Munsif, Alandur made in I.A. No. 2737 of 2007 in O.S. No. 556 of 1997 dated 06.09.2007 stands confirmed and the revision in C.R.P. No. 3942 of 2007 filed at the instance of the judgment debtor stands dismissed.
2.The order of the above learned District Munsif made in E.A. No. 136 of 2007 in E.P. No. 12 of 1993 dated 24.09.2007 stands confirmed and the revision in C.R.P. No. 3478 of 2007 stands dismissed.
3. C.R.P. No. 3669 of 2007 filed against the order of the said learned District Munsif dated 27.06.2007 in E.P. No. 12 of 1993 in R.C.O.P. No. 4 of 1978 is ordered on the following terms:
a. In view of the order that has been passed in C.R.P. No. 3478 of 2007 confirming the order of the learned District Munsif in refusing to entertain the re-opening of the witnesses 2 to 7 and entertaining only the examination of witness No. 10, who cited in the list of witnesses, he alone should be examined on the side of the judgment debtor.
b.The judgment debtor shall produce the said witnesses or take summons for appearance of the said witnesses on 24.04.2008 before the learned District Munsif, Alandur and on the same day, the said witnesses should be examined on behalf of the judgment debtor and cross examined on behalf of the decree holder.
c. After the examination of the said witnesses, the learned District Munsif is directed to pass orders in the execution petition on or before 30.04.2008.
d. The learned District Munsif, Alandur shall not permit the decree holder or the judgment debtor to examine any other witnesses on his side.
e. If the witness No. 10 cited in the list of witnesses does not appear on 24.04.2008, no more chance shall be given to the judgment debtor and that the evidence on his side shall be closed and thereafter as stated already order shall be passed by the learned District Munsif, Alandur on or before 30.04.2008.
f. The learned District Munsif, Alandur shall not entertain any other application either on the side of the judgment debtor or on the side of the decree holder in the said E.P. No. 12 of 1993.
35. With the above directions, the Civil Revision petitions are ordered accordingly. No costs. Consequently, connected M.Ps. are closed.