The Second Execution Petition can be filed to execute a decree is maintainable or not, came up for consideration before the Rajasthan High Court in Durga Prasad v. Gauri Shankar reported in MANU/RH/0065/1966 : AIR 1966 Raj 258, wherein, it has been held that there may be separate and successive applications for the execution of a decree in which different reliefs may be claimed and Order 2 Rule 2(1) C.P.C does not apply to execution proceedings.
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
C.R.P. NPD (MD) No. 175 of 2009 and M.P. (MD) No. 1 of 2009
Decided On: 11.02.2009
C. Jacob Johnson
Vs.
V. Muthusamy
Hon'ble Judges/Coram:
N. Paul Vasantha Kumar, J.
1. The Civil Revision Petition is filed against the order dated 28.11.2008 made in E.P. No. 113 of 2008 in O.S. No. 1538 of 2004, on the file of the Principal District Munsif Court, Dindigul.
2. The respondent herein filed Suit in O.S. No. 1538 of 2004 and prayed for specific performance of an agreement by executing a sale deed after receiving the balance amount of Rs. 5,000/- and if the petitioner refuses to execute the same, the execution can be ordered through Court and also to put the respondent in possession. The suit was decreed as per the exparte decree dated 25.10.2006. The respondent herein filed E.P. No. 151 of 2007 for the execution of the sale deed through Court. The said Execution Petition was ordered and the Execution Petition was terminated by an order dated 31.03.2008 due to the execution of the sale deed through Court. Thereafter, the respondent filed E.P. No. 113 of 2008 for delivery of possession as per sale deed executed by the Court below.
3. The said execution petition was resisted by the petitioner herein by stating that the second Execution Petition is not maintainable, since the earlier Execution Petition filed in E.P. No. 151 of 2007 was terminated on 31.03.2008. The Court below allowed the Execution Petition on 28.11.2008 and held that the earlier Execution Petition was filed only for execution of the sale deed and not for delivery of possession. The same is challenged in this Civil Revision Petition on the very same ground that the second Execution Petition is not maintainable.
4. Admittedly, there is a decree passed in favour of the respondent. Even though it is an exparte decree, the same was accepted by the petitioner by not filing any application to set aside the said exparte decree. The correctness of the decree passed cannot be gone into by the Executing Court as per the decision of the Hon'ble Supreme Court reported in MANU/SC/0065/2002 : AIR2002SC808 (Food Corporation of India v. S.N. Nagarkar). Only if the Court passed the decree without jurisdiction or if the period of limitation is over, the same cannot be executed.
5. The Second Execution Petition can be filed to execute a decree is maintainable or not, came up for consideration before the Rajasthan High Court in Durga Prasad v. Gauri Shankar reported in MANU/RH/0065/1966 : AIR 1966 Raj 258, wherein, it has been held that there may be separate and successive applications for the execution of a decree in which different reliefs may be claimed and Order 2 Rule 2(1) C.P.C does not apply to execution proceedings.
6. Here, in this case, as rightly held by the Court below, the earlier execution petition was filed to execute the sale deed through Court and delivery of possession was not prayed for. Hence, for executing the remaining portion of the decree, the respondent is well within his right to file E.P. No. 113 of 2008, which was rightly ordered by the Court below. No case made out to interfere with the order passed by the Court below. Accordingly, the Civil Revision Petition is dismissed in limini. No costs. Consequently, M.P. (MD) No. 1 of 2009 is closed.
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