Citation Codes

Equivalent Citations

citation codes

Case Number

C.R.P PD. No. 1411 of 2009 and M.P No. 1 of 2009

Attorney(S)

K. Kalyanasundaram, Advocate for Petitioner.
S. Dhanasekaran, Advocate for Respondent No. 1; No appearance for Respondent No. 2.

Judges

S. Palanivelu, J.

Acts

Order 21, Rule 97, sub-rule (2), read with Order 21, Rule 98.
Section 35-A of the Code of Civil Procedure.17.
Order 21 Rules 97, 98, 99 and 101, C.P.C
Order 21, Rule 98, sub-rule (1), C.P.C
Rule 99 of Order 21 of the Code,
Order 21, Rule 101 of C.P.C10.
Rule 99 of Order 21 of C.P.C
Order 21, Rule 98, sub-rule (1),
Order 21, Rule 98, sub-rule (2)
Order 7, Rule 11 of C.P.C
Order 21, Rule 101, C.P.C,
Order 21, Rule 99, C.P.C
Order 21, Rule 97, C.P.C
Order 7, Rule 11, C.P.C,
Order 21, Rule 101.6.
Order 21, Rule 101,
Order 21, Rule 103,
Rule 101 of Order
Order 21, Rule 99,
Order 21, Rule 97.
Order 21, Rule 35,

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Smart Summary

Case Summary — Civil Revision Petition (against Plaintiff in O.S. No. 248 of 2009)

Factual and Procedural Background

This Civil Revision Petition was filed against the Plaintiff in O.S. No. 248 of 2009 pending before the Vacation Civil Judge (DMC), Coimbatore.

The Petitioner earlier filed O.S. No. 273 of 2000 in the Principal District Munsif Court, Coimbatore against his brother (the 2nd Respondent) for delivery of possession of certain suit properties (Schedule 'D' being the property in dispute in the present proceedings). The Petitioner obtained an ex parte decree in that suit on 31.07.2000 and initiated execution proceedings in E.P. No. 133 of 2002. The 2nd Respondent did not appear in those proceedings and delivery was ordered. When Court Amin attempted delivery, the 2nd Respondent allegedly obstructed. Subsequently, a Suit was filed (initially before the Vacation Civil Court, Coimbatore) impleading the Petitioner and the 2nd Respondent; that Suit was transferred to the Trial Court as O.S. No. 248 of 2009 for permanent injunction.

The Petitioner sought revision under Article 227 of the Constitution, praying that the Plaint in O.S. No. 248 of 2009 be struck off.

The 1st Respondent's pleading in O.S. No. 248 of 2009 sets out that the property originally belonged to Venkatesh Naidu (his father), that Venkatesh Naidu executed an unregistered declaration deed in favour of the 2nd Respondent on 07.05.1993, that the 1st Respondent purchased the property from the 2nd Respondent on 17.09.2008, that the properties in O.S. No. 273/2000 and O.S. No. 248/2009 are different, and that on 28.04.2009 the Petitioner allegedly came with Court Amin, police personnel and rowdy elements to evict the Plaintiff, prompting the filing of the Suit (which is pending).

Legal Issues Presented

Whether the filing of the Suit in O.S. No. 248 of 2009 by the 1st Respondent amounts to an abuse of the process of the Court such that the High Court should strike off the Plaint under Article 227 of the Constitution.
Whether a third party (or an alleged obstructionist) can file a separate Suit when execution proceedings and remedies under Order 21 (Rules 97–101 and 99 in particular) are available to address obstruction in delivery of possession.
Whether the Petitioner should first have availed the executing court remedies under Order 21 (including Rule 97 and Rule 99) and/or whether the Petitioner must pursue alternative remedies such as an application under Order 7, Rule 11 (for rejection of the Plaint) before invoking Article 227.

Arguments of the Parties

Petitioner's Arguments (as represented by Mr. Kalyanasundaram)

The 1st Respondent's Suit is an abuse of the process of the Court.
Under Article 227 the High Court has the power to strike off the Plaint in O.S. No. 248 of 2009.
Order 21, Rule 101, C.P.C. precludes the 1st Respondent from filing a separate Suit on matters relating to obstruction during execution; the proper course was to move the executing Court under Rule 99 of Order 21 of the C.P.C.
Reliance was placed on various decisions of the Supreme Court and this Court supportive of the view that separate suits are barred where Order 21 remedies apply.

1st Respondent's Arguments (as represented by S. Dhanasekaran)

The Petitioner must first exhaust the alternative remedy of filing an application under Order 7, Rule 11, C.P.C. to reject the Plaint before the Trial Court; Article 227 cannot be invoked in the first instance without that step.
The 1st Respondent pleaded substantive facts: a prior declaration deed in favour of the 2nd Respondent, subsequent purchase by the 1st Respondent (17.09.2008), and that the properties in the earlier suit and the present suit are different; the 1st Respondent also asserted he had no knowledge of the earlier suit or execution proceedings.
Relied upon authorities that the High Court should ordinarily direct parties to avail alternative remedies before invoking Article 227.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, 1997 (2) LW 266	Interplay and interpretation of Order 21 Rules 97, 98, 99 and 101 C.P.C.	The Court relied on this authority to outline how Order 21 Rules operate together: (a) Rule 97 applications by decree-holder against obstruction; (b) Rule 99 remedy for dispossessed strangers; and (c) Rule 101 bar on separate suits where executing court remedies apply. This framed the statutory landscape for the Court's analysis.
Kayalvizhi v. S. Parthasarathy, 2008 (5) CTC 137	Application of Order 21, Rule 97 (petition by decree-holder against an obstructor).	The Court noted this decision as dealing with Rule 97 and cited it in support of the proposition that a decree-holder may file an application against an obstructor under Rule 97.
M.S. Mansoor Deen & Ors v. Fathimuthu Beevi & Ors, 2009 (4) CTC 489 : 2009 (4) LW 592	Application of Order 21, Rule 97 (executing court remedy against obstruction).	The Court referenced this decision as another instance of the Court's jurisprudence under Order 21, Rule 97 supporting the premise that executing court remedies are the proper course against obstruction.
Md. Akhtar Hossain v. Suresh Singh, AIR 2004 Cal 99	Principle that intervention by a third party in execution proceedings by bringing a fresh Suit is barred by Order 21, Rule 101.	The Court cited the Calcutta High Court's holding (as reported) that a third party bringing a fresh suit is barred by Rule 101; this was used to support the statutory bar against separate suits in certain execution-related contexts.
Bannari Amman Sugars Ltd. v. R. Sakthivel, 2008 (1) CTC 288	Permissibility of High Court invoking Article 227 where a suit is not maintainable and an alternative remedy is available.	The petitioner relied on this decision to argue that Article 227 may be invoked to strike out an unmaintainable suit notwithstanding the availability of alternative remedies. The Court referenced it in the argument but did not find that circumstances here warranted such invocation.
Ranipet Municipality v. M. Shamsheerkhan, 1998 (1) CTC 66	Exercise of High Court's power under Article 227 where process abused.	Cited by the petitioner (through other authorities) as part of a line of cases where Article 227 was exercised in cases of alleged abuse of process; used in weighing whether Article 227 should be invoked.
K.K. Swaminathan v. Srinivasagam, 2003 (4) CTC 347	High Court's jurisdiction under Article 227 in appropriate cases.	Part of the authorities relied upon to show instances where Article 227 was invoked; the Court considered these when deciding whether to exercise constitutional jurisdiction in the present factual context.
Tamil Nadu Handloom Weavers' Cooperative Society v. S.R. Ejaz, 2009 (5) CTC 710 : 2009 (5) LW 79	High Court intervention under Article 227 in suitable circumstances.	Cited among authorities that discuss the scope of Article 227; the Court used such authorities to frame the principle that Article 227 is not to be invoked where alternative efficacious remedies are available or where factual disputes require trial.
Venkatasubbiah Naidu, A. v. S. Challappan, 2000 (4) CTC 358	Principle that High Court should ordinarily direct parties to avail alternative remedies before resorting to constitutional jurisdiction.	The Court relied on this authority to emphasize that Article 227 should generally be preceded by exhaustion of alternative remedies; the decision supported the view that the High Court should in many cases direct parties to use other remedies first.
Enercon (India) Ltd. v. J.T. Micheal Anjalo, 2005 (2) CTC 365	Limits on invoking Article 227; Article 227 cannot be invoked without circumstances warranting such intervention.	Referred to for the proposition that Article 227 should not be invoked lightly and that the High Court should act only where abuse or error is clear.
Ganapathy Subramanian v. S. Ramalingam, 2007 (7) MLJ 13	Filing of a suit and its acceptance by the Trial Court does not ipso facto mean the Trial Court has transgressed its jurisdiction; merits must be dealt with by the Trial Court.	The Court cited this to support the principle that the merits and factual disputes are to be considered by the Trial Court and that mere filing of a suit does not show jurisdictional error.
Ootacamund Club v. H.S. Mehta, 2009 (5) CTC 627	When an alternative remedy of appeal (or other remedy) is available, Article 227 should not be invoked.	Used to bolster the Court's view that where alternative remedies exist, Article 227 is typically not the proper first recourse.
Gunaseelan v. C. Valarmathi, 2009 (5) CTC 693	Falsity of plaint is a matter for trial; vexatious/false suits may attract costs under Section 35-A of the CPC.	Cited to indicate that allegations of falsity or vexatiousness generally require trial and are not usually grounds for immediate High Court intervention under Article 227.
Vaniyar Nala Sangam v. Kumar, 2010 (2) MWN (Civil) 154	High Court should not conclude a suit is an abuse of process merely on the averments in revision; issues should be raised before the Trial Court.	The Court relied on this decision to support the conclusion that the averments in the revision did not establish abuse of process and that the trial court should be permitted to consider the issues.
Governing Council Of American College v. Dr. M. Davamani Christober, 2010 (3) CTC 604	High Court must show exceptional circumstances, error apparent on face of record, or lack/improper exercise of jurisdiction to invoke Article 227.	The Court cited this authority for the proposition that Article 227 requires exceptional circumstances and that absence of apparent error precludes High Court interference; applied to deny the revision.

Court's Reasoning and Analysis

The Court proceeded by first examining the statutory framework of Order 21 (particularly Rules 97, 98, 99, 101 and related provisions) and the way the authorities interpret those provisions. The Court relied on Brahmdeo Chaudhary to describe the statutory mechanism:

When a decree-holder is obstructed in execution of possession, the proper remedy is an application under Order 21, Rule 97; after adjudication the executing Court may direct removal of obstruction and an order under Rule 98 (and such orders may be treated as decrees under Rule 101).
If a stranger (a person other than the judgment-debtor) is dispossessed, Rule 99 provides a specific remedy to apply to the executing Court for restoration; such orders are deemed decrees and separate suits are generally barred under Rule 101.

Applying these principles to the facts as pleaded and argued before it, the Court observed:

The Petitioner (decree-holder) had not taken steps before the Executing Court against the alleged obstructionist (the 1st Respondent). In other words, the executing court remedies under Order 21 had not been pursued by the Petitioner.
The 1st Respondent had not been shown to be dispossessed (the 1st Respondent was not concededly in possession), and the relevant provisions of the Code do not, on the material before the High Court, prohibit the 1st Respondent from filing the Suit.
The existence of disputed factual contentions (for example, the 1st Respondent's assertion that he purchased the property in 2008 and that the properties in the two suits are different, and his claim of lack of knowledge of the earlier proceedings) meant that contentious issues of fact would have to be examined by the Trial Court and could not be appropriately resolved in a revision under Article 227.
Article 227 is not to be invoked where alternative efficacious remedies are available (for instance, applying to the executing court under Order 21 or seeking rejection of the Plaint under Order 7, Rule 11). The Court relied upon a line of authorities emphasizing that the High Court should ordinarily require parties to exhaust such remedies unless exceptional circumstances exist.

On that basis the Court concluded that the present revision petition was not the appropriate forum to decide the maintainability of the Suit or to resolve the factual disputes and that the Petitioner should have first approached the executing court (and could also seek relief under Order 7, Rule 11 before the Trial Court). Therefore, the revision was held not maintainable.

Holding and Implications

Holding: The Civil Revision Petition is DISMISSED.

Implications:

Direct effect on the parties: The Petitioner's challenge under Article 227 to strike off the Plaint in O.S. No. 248 of 2009 is refused; the Trial Court proceedings (O.S. No. 248 of 2009) remain on file for adjudication. The Civil Revision Petition is dismissed with no costs, and the connected Miscellaneous Petition is closed.
Procedural guidance from the Court's decision: The decree-holder should pursue execution remedies under Order 21 (including Rule 97 and, where applicable, Rule 99) to address obstruction in delivery of possession. Where alternative remedies (including rejection of Plaint under Order 7, Rule 11 or executing court remedies) exist, Article 227 will ordinarily not be entertained by the High Court unless exceptional circumstances or an error apparent on the face of the record is shown.
Broader precedential effect: The opinion applies established principles and authorities regarding the interplay of Order 21 provisions and the limited scope of Article 227; the Court did not purport to lay down a novel legal principle. No new precedent was announced beyond the application of existing authorities to the facts of this case.

Order: Civil Revision Petition dismissed. No costs. Connected Miscellaneous Petition closed.

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V. Krishnamoorthy Petitioner v. Balakrishnan 2. V. Ramamoorthy S

1. This Civil Revision Petition is filed against the Plaintiff in O.S No. 248 of 2009 before the Vacation Civil Judge (DMC), Coimbatore.

2. The Petitioner had filed O.S No. 273 of 2000 on the file of the Principal District Munsif Court, Coimbatore against his brother, the 2nd Respondent herein for delivery of possession of the suit properties. In the said Suit, Schedule ‘D’ is the property in dispute in the present proceedings. He got an ex parte decree in the said case on 31.7.2000 He levied Execution proceedings in E.P No. 133 of 2002 on the file of the above said Court for delivery. In the Execution proceedings also, the 2nd Respondent did not appear and delivery was ordered by the Court. When the Court Amin came to deliver the property in favour of this Petitioner, the 2nd Respondent obstructed and thereafter he came with a Suit before the Vacation Civil Court, Coimbatore impleading this Petitioner and 2nd Respondent in a Suit which was subsequently transferred to the Trial Court in O.S No. 248 of 2009 for permanent injunction. After filing of the Suit, the Petitioner has preferred this Revision before this Court under Article 227 of the Constitution praying this Court to strike off the Plaint in O.S No. 248 of 2009.

3. In O.S No. 248 of 2009, the 1st Respondent has alleged that the suit property originally belonged to one Venkatesh Naidu who is the father of the 1st Respondent, that on 7.5.1993 Venkatesh Naidu executed an unregistered declaration deed (Urudhi Mozhi Paththiram) in favour of 2nd Respondent, that this 1st Respondent purchased the property from the 2nd Respondent on 17.9.2008, that the properties in O.S No. 273 of 2000 and O.S No. 248 of 2009 are different, that on 28.4.2009, this Petitioner came with Court Amin, Police personnel and rowdy elements to vacate the Plaintiff from the suit property and hence he had to file the Suit and the same is pending.

4. The learned Counsel for the Petitioner Mr. Kalyanasundaram would submit that the very facts existing in this case would clearly show that the attempt on the part of the 1st Respondent is abuse of process of the Court and hence under Article 227, the Court has got every power to strike off the case in O.S No. 248 of 2009, that in view of Order 21, Rule 101, C.P.C, the 1st Respondent is precluded from filing a separate Suit and he should have approached the executing Court under Rule 99 of Order 21 of C.P.C In support of his contention, he relied upon various decisions of Supreme Court and this Court.

5. Before entering into the case law, it is profitable to go through the relevant provisions with regard to the proceedings to be taken against the obstructionists in the matter of delivery of possession in Execution proceedings. In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, 1997 (2) LW 266, Their Lordships had an occasion to deal with Order 21 Rules 97, 98, 99 and 101, C.P.C They have observed as follows:

A conjoint reading of Order 21, Rules 97, 98, 99 and 101, C.P.C., projects the following picture:

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35, then the decree-holder has to move an Application under Order 21, Rule 97, for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2), read with Order 21, Rule 98. It is obvious that after such adjudication, if it is found that the resistance or obstruction was occasioned without just cause by the judgment-debtor or by some other person at his instigation or on his behalf, then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101, and no separate Suit would lie against such order meaning thereby, the only remedy would be to prefer an Appeal before the appropriate Appellate Court against such deemed decree.

(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot of account of his absence from the place or for any other valid reason, then his remedy would lie in filing an Application under Order 21, Rule 99, C.P.C claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an Application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1), C.P.C the Executing Court can direct the stranger applicant under Order 21, Rule 99, to be put in possession of the property or if his application is found to be substanceless it has to be dismissed. Such an order passed by the Executing Court disposing of the Application one way or the other under Order 21, Rule 98, sub-rule (1), would be deemed to be a decree as laid down by Order 21, Rule 103, and would be appealable before appropriate Appellate forum. But no separate Suit would lie against such orders as clearly enjoined by Order 21, Rule 101.

6. The relevant provisions would indicate that it is for the decree holder to take proceedings against the judgment-debtor or any other person claiming right under him who obstructs delivery of immovable property. Rule 97 enables the decree holder to file an Application and after adjudication, the Court may allow the Application directing him to be put in possession if the obstruction is found unreasonable or dismiss the Petition if it turns out to be an unsustainable one. In so far as Rule 99 is concerned, if any person other than this judgment debtor is dispossessed from a immovable property by their decree holder or the property has been sold in execution of a decree, if the dispossession is caused by the Court auction purchaser, then the person dispossessed may prefer a Petition to the Executing Court complaining of such dispossession.

7. When any Petition filed by the decree holder under Rule 7 or any person dispossessed as described under Rule 99 of Order 21 of the Code, it shall be adjudicated by the Executing Court and filing of separate Suit is specifically barred under Rule 101 of Order 21. Pertinent it is to note that the Petitioner being the decree holder has not taken any initiatives before the Executing Court against the obstructionist, the 1st Respondent. The 1st Respondent has not been dispossessed. He is not concededly in possession of the property. Relevant provisions of the Code do not prohibit the 1st Respondent from filing the Suit.

8. The learned Counsel for the Petitioner draws attention of this Court to the following decisions:

1. Kayalvizhi v. S. Parthasarathy, 2008 (5) CTC 137;

2. M.S Mansoor Deen & 3 others v. Fathimuthu Beevi & 7 others, 2009 (4) CTC 489 : 2009 (4) LW 592;

3. Md. Akhtar Hossain v. Suresh Singh, AIR 2004 Cal 99; and

4. Bannari Amman Sugars Ltd. v. R. Sakthivel, 2008 (1) CTC 288.

9. In Kayalvizhi v. S. Parthasarathy, 2008 (5) CTC 137, this Court has dealt with Order 21, Rule 97, C.P.C under which a Petition can be filed by the decree holder against an Obstructor. The decision in M.S Mansoor Deen & 3 others v. Fathimuthu Beevi & 7 others, 2009 (4) CTC 489 : 2009 (4) LW 592, above, this Court has rendered the decision under Order 21, Rule 97. It has been observed by this Court that as per the decision in Md. Akhtar Hossain v. Suresh Singh, AIR 2004 Cal. 99, as held by Calcutta High Court, intervention by a third party in an Execution proceeding by bringing a fresh Suit is barred by Order 21, Rule 101 of C.P.C

10. It is contended on behalf of the 1st Respondent that without exhausting alternative remedy of filing Application under Order 7, Rule 11, C.P.C, to reject the Plaint before the Trial Court, the Petitioner cannot seek the relief under Article 227 of Constitution before this Court. Repelling the contention, the learned Counsel for the Petitioner cited a decision reported in R. Sakthivel's case above in which it is held that when the Suit is not maintainable and alternative remedy is available, this Court can invoke jurisdiction under Article 227 and interfere.

11. The learned Counsel for the Petitioner also relies upon various decisions of this Court which would indicate that this Court can exercise power under Article 227 of Constitution when a party abuses process of Court:

1. Ranipet Municipality v. M. Shamsheerkhan, 1998 (1) CTC 66;

2. Swaminathan, K.K. Swaminathan v. Srinivasagam, 2003 (4) CTC 347; and

3. Tamil Nadu Handloom Weavers' Cooperative Society v. S.R Ejaz, 2009 (5) CTC 710 : 2009 (5) LW 79.

12. The Court has to see whether the filing of the Suit in O.S No. 248 of 2009 by the 1st Respondent is abuse of process of Court. It is stated by the Petitioner that the Suit is not maintainable since the property in dispute was purchased by the 1st Respondent from the 2nd Respondent during the pendency of the Execution Petition but it is contended by the 1st Respondent that he had no knowledge about the Suit and the Execution proceedings filed by this Petitioner. It is well settled that contentious issues or facts cannot be discussed and dealt in the Petition filed under Article 227 of the Constitution. When alternative remedy of filing Petition under Order 7, Rule 11 of C.P.C is available to the Petitioner, for rejection of Plaint before the Trial Court, when the matter has to be dealt with reference to facts, this Court can refuse to exercise jurisdiction under Article 227.

13. The learned Counsel for the 1st Respondent-S. Dhanasekaran would place much reliance upon following decision for stressing the preposition that when an efficacious alternative remedy is available to a party to the proceedings, the High Court can exercise jurisdiction under Article 227 of the Constitution:

1. Venkatasubbiah Naidu, A. v. S. Challappan, 2000 (4) CTC 358;

2. Enercon (India) Ltd. v. J.T. Micheal Anjalo, 2005 (2) CTC 365;

3. Ganapathy Subramanian v. S. Ramalingam, 2007 (7) MLJ 13;

4. The Ootacamund Club v. H.S. Mehta, 2009 (5) CTC 627;

5. Gunaseelan v. C. Valarmathi, 2009 (5) CTC 693;

6. Vaniyar Nala Sangam v. Kumar, 2010 (2) MWN (Civil) 154; and

7. The Governing Council Of American College v. Dr. M. Davamani Christober, 2010 (3) CTC 604.

14. Their Lordships in Venkatasubbiah Naidu, A. v. S. Challappan, 2000 (4) CTC 358, above have held that though no hurdle can be put against the exercise of the Constitutional powers of the High Court, it is a well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a Constitutional remedy. This Court in Enercon (India) Limited case has held that Article 227 cannot be invoked only for abuse of process of law stares in the face and if circumstances warrant.

15. In Ganapathy Subramanian v. S. Ramalingam, 2007 (7) MLJ 13, above, it is observed by this Court that mere filing of a Suit by the Respondents and taking the Suit on the file by the Trial Court cannot be regarded as an act on the part of the Trial Court to transgress its jurisdiction or its bound. Of course, the party who files the Suit might have filed it suppressing material facts or made up the Suit to his convenience for seeking the relief which he is not otherwise entitled to, but that fact has to be considered by the Trial Court during the relevant point of time.

16. In The Ootacamund Club v. H.S. Mehta, 2009 (5) CTC 627, I have held after following the Supreme Court decisions that when an alternative remedy of Appeal is available, the party cannot seek indulgence of this Court under Article 227 of the Constitution. In Gunaseelan v. C. Valarmathi, 2009 (5) CTC 693, this Court has held that the falsity of plaint is a matter to be determined at the time of trial and if at all the suit is vexatious and based on false assertion, Plaintiff would be liable to pay compensatory costs under Section 35-A of the Code of Civil Procedure.

17. This Court, in Vaniyar Nala Sangam v. Kumar, 2010 (2) MWN (Civil) 154, has observed that on the basis of averments made in Revision, it cannot be concluded that Suit is an abuse of process of law and that the Petitioners can raise all issues before Trial Court in accordance with law. Eventually, the Civil Revision Petition filed under Article 227 of the Constitution was dismissed by this Court. In The Governing Council Of American College v. Dr. M. Davamani Christober, 2010 (3) CTC 604, this Court has rendered a finding that the High Court would not embark on any enquiry in exercise of power under Article 227 provided that finding is based on certain materials, that the party invoking Article 227 must show exceptional circumstances for exercise of such jurisdiction and show existence of error apparent on face of record or patent error and when lack of jurisdiction or improper exercise of jurisdiction is not made out, Article 227 could not be invoked.

18. Adverting to the facts of the present case, this Court is of the considered view that the Petitioner has to move the Executing Court under Order 21 of C.P.C to remove the obstruction. In so far as the exercise of jurisdiction under Article 227 is concerned, admittedly the Petitioner has got an alternative remedy of filing an Application under Order 7, Rule 11 of C.P.C for rejection of Plaint before the Court below. If this Court finds that the jurisdiction was not exercised by the Trial Court properly or if it has exceeded the jurisdiction or if the Suit is not found maintainable, it can exercise such power. It is reiterated that the fact of maintainability of the Suit cannot be decided by this Court in this Revision which involves dealing with the merits and demerits of the case by the Trial Court. Hence, in my opinion, this Revision is not maintainable.

19. In the light of the decisions cited above and all the well settled principles, the Revision cannot be sustained and is liable to be dismissed.

20. In fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

BV

V. Krishnamoorthy Petitioner v. Balakrishnan 2. V. Ramamoorthy S

Case Summary — Civil Revision Petition (against Plaintiff in O.S. No. 248 of 2009)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as represented by Mr. Kalyanasundaram)

1st Respondent's Arguments (as represented by S. Dhanasekaran)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

V. Krishnamoorthy Petitioner v. Balakrishnan 2. V. Ramamoorthy S

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