IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P.NPD.Nos.2899 & 2900 of 2008 S.Venkataraman @ Balaji ... Petitioner Vs. Kanakadharan ... Respondent PRAYER: This Civil Revision Petition has been filed for seeking to set aside the order passed on 12.02.2008 in E.A.No.3294 of 2007 in E.P.No.2078 of 2005 in O.S.No.2922 of 2002, on the file of the X Assistant Judge City Civil Court, Chennai. For Petitioner : Mr.K.S.Narayanan For Respondent : Mr. T.L.Ram Mohan, Sr.Counsel for M/s.B.Sivakumar O R D E R
CRP No.2900 of 2008 : This revision petition has been filed by the petitioner/decree holder against the order of dismissal dated 12.02.2008 passed in EP No.2078 of 2005 in OS No.2922 of 2002 on the file of X Assistant City Civil Judge, Chennai.
2. CRP No.2900 of 2008 : This revision petition has been filed by the petitioner against the order passed in EA No.3294 of 2007 in EP No.2078 of 2005 in OS No.2922 of 2002 on the file of X Assistant City Civil Judge, Chennai dated 12.02.2008 in allowing the said application.
3. The petitioner in both the revisions is the decree holder before the execution Court. The respondent in both the revision is the judgment debtor before the execution Court (lower Court). Since both the revisions are inter dependent, both the revisions are heard simultaneously for passing a common judgment.
4. Heard Mr.K.S.Narayanan, the learned counsel for the revision petitioner / decree holder and T.L.Ram Mohan, learned senior counsel appearing for M/s.B.Sivakumar, learned counsel for the respondent.
5. The learned counsel for the petitioner would submit in his argument that the lower Court namely the execution Court was wrong in allowing the application filed by the judgment debtor in E.A.No.3294 of 2007, who was impleaded as legal representative of the judgment debtor and her right was already decided in the suit and nothing is required to be adjudicated in the said application. He would further submit that the respondent claimed as a permissive occupier in the said property and it was considered without any evidence and the decree passed by the trial Court will bind her, whereas the execution Court had miserably failed to hold that the right of the respondent as judgment debtor was independent with the permissive occupation and it can be maintained under Section 47 (3) of CPC are not sustainable. He would further submit in his argument that the respondent was impleaded as a sole legal representative of the deceased and the respondent can claim only the right accrued under her deceased husband and no independent claim or right, if any pleaded, cannot be invoked in the execution application. He would also submit in his argument that the lower Court had failed to note that the permissive possession was given only to the husband of the respondent and the respondent lived together with her husband the 1st defendant and the mother of the defendant namely, the testatrix had left the Will in favour of the petitioner/plaintiff and the probate proceedings were also ended in favour of the plaintiff after the life time of the testatrix and the testatrix was not alive to give any permission to the respondent, after the death of her husband to continue the possession of the suit property and therefore, the decision reached by the lower Court that the respondent has got an independent right of permission to continue in the suit property and she has established such right are not correct. He would further submit in his argument that the respondent did not take any steps to establish her alleged right of permission during the life time of her husband and therefore, there cannot be any independent right derived by her from her mother-in-law, the testatrix. He would also submit in his argument that the executing Court cannot go beyond decree except in cases, where the trial Court has no jurisdiction to pass such a decree. He would further submit in his argument that when the decree passed by the trial Court became final without being questioned in appeal or revision, such decree even if it is erroneous would still bind the parties to the said suit and their representatives. He would draw the attention of the Court to the judgment of the Hon’ble Apex Court reported in (1970) 2 MLJ 85 (SC) in between Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others in support of his arguments. He would further cite a judgment of this Court for the same proposition of law reported in (2007) 1 MLJ 484 in between M.Baskaran v.M.Sabathy. Therefore, he would request the Court that the finding reached by the lower Court that the decree passed against the husband of the respondent, on which, E.P., has been launched against the husband and after his death, the respondent being impleaded in his place as his legal representative cannot be executed is against all propositions of law and therefore, the said order passed in the application in E.A. No.3294 of 2007 to dismiss the E.P., has to be dismissed and the dismissal of the E.P., have to be interfered and set aside.
6. The learned senior counsel for the respondent would submit in his argument that the present revision filed by the petitioner against the order passed by the lower Court are not sustainable and the appeal alone is provided for the orders passed by the execution Court and on that score itself, the revisions are to be dismissed. He would further submit in his argument that he would cite various judgments in support of his arguments. Accordingly, he wants to cite a judgment of this Court reported in 1996(II) CTC 243 in between Janaki Ammal Vs.Ganapathi Konar and two others. He would cite a judgment of the Hon’ble Apex Court reported in (1996) 3 SCC 154 in between Babulal v.Raj Kumar and others. Yet another judgment of the Hon’ble Apex Court reported in 2002 (1) SCC 662 to the principle that any person other than the judgment debtor is sought to be dis-possessed by the decree holder, Section 47 will come into operation. He would also cite yet another judgment of Hon’ble Apex Court reported in (2006) 4 SCC 412 in between S.Rajeswari Vs.S.N.Kulasekaran and others to the principle that an appeal will lie when the obstruction to the delivery of possession of the land claimed by the decree holder has been ordered by the execution Court. The judgment of Hon’ble Apex Court reported in AIR 2008 SCC 1997 in between Usha Sinha Vs. Dina Ram and others and a judgment of this Court reported in 2008 (2) CTC 157 in between Arifa Begum Vs.Noorjahan Begum for the same principle that any order passed as an obstructor / 3rd party regarding delivery of possession, appeal alone will lie against such orders and the revisions are not maintainable. He would further submit in his argument that the scope of all issues relating to the executability of the decree against any person are to be tried in execution itself and not by the way of separate suit under Section 47 of CPC. For the said principle he relies upon the judgment of Hon’ble Apex Court reported in 2002 (3) CTC 248 in between Govt. of Orissa Vs. M/s.Ashok Transport Agency and others. He would further submit in his argument that the petitioner when he was examined as RW1 had categorically admitted that the respondent/judgment debtor was in a permissive possession by the testatrix in the suit property and therefore, the right of the judgment debtor has to be decided in the execution itself as she was not a party to the main suit and when permissive possession is in existence, and therefore, the delivery of the possession cannot be executed against her and the lower Court had rightly passed an order dismissing the E.P., and therefore, the revision petitions filed by the petitioner are also to be dismissed as not maintainable and even if it is maintainable, there is no reason for interfering with the lower Court’s findings and therefore, they need not be interfered and the revision petitions may be dismissed.
7. I have given anxious thoughts to the arguments advanced on either side. The admitted case which could be seen through evidence and the affidavits and documents placed on both sides would be that, the suit was filed by the executor of a Will executed by the mother of the defendant against the defendant for delivery of possession of the suit property. The case of the petitioner/decree holder in the suit was that the mother of the defendant had executed a Will appointing the plaintiff as executor bequeathing the property in favour of the defendant’s sister for her life time and thereafter, the property should go to the daughter of the life estate holder and accordingly, the probate proceedings were launched in this Court and the probate was also granted, since the defendant did not seriously contest the matter. The said probate proceedings filed before this Court was over and against which an appeal was preferred by the defendant in O.S.A.No.107 of 2005 and it has been admitted and the said O.S.A.No.107 of 2005 was also dismissed confirming the grant of probate in favour of the plaintiff as executor. Thereafter, he has filed the suit for delivery of possession on the basis of the Will executed by the testatrix. In the meantime, the defendant remained exparte and an exparte decree was passed against him directing the defendant to hand over vacant possession of the suit property to the plaintiff, the executor. On the basis of the said judgment and decree which became final, since no application was filed, to set aside the exparte decree by the defendant, execution proceedings were initiated by the plaintiff/decree holder, the petitioner herein. Accordingly, E.P.No.2078 of 2005 was filed and the defendant / judgment debtor had filed counter opposing the execution proceedings. In the meantime, the defendant/judgment debtor died and hence, the petitioner/decree holder had filed an application to implead the legal representative of the defendant/judgment debtor and accordingly, it was allowed and thus the respondent had come to the picture as legal representative of the judgment debtor. The respondent thus stepped into the shoes of the judgment debtor and contested the execution proceedings. In the course of contest, she has exercised her independent right of permissive possession stated to have been given by the testatrix, who is none-other than the mother-in-law of the respondent and had filed an application under Section 47 of CPC that her right to possession by way of permissive possession should be adjudicated and should not be disturbed and E.P., should be dismissed.
8. In the back drop of these admitted facts, the lower Court had considered her request and after examining the respondent as PW1 and the petitioner as RW1, had come to the conclusion that the respondent/judgment debtor had an independent right of permissive possession and therefore, the E.P., cannot be executed against her.
9. It has been categorically submitted that her right was considered under Section 47 CPC and was up held. However, in the course of arguments advanced by the learned senior counsel, it has been put forth by various judgments of Hon’ble Apex Court as well as this Court, to the effect that the delivery of possession as to the obstructor is virtually under Order 21 Rule 98 CPC and the appeal under Order 21 Rule 103 CPC alone will lie. It is no body’s case that the delivery has been ordered and the respondent/judgment debtor has obstructed the delivery of possession and in the process of removal of obstruction, an order has been passed under Order 21 Rule 98 CPC when the respondent has obstructed the effecting of delivery and the Court had ordered removal of obstruction and delivery has been ordered then only it has to be resorted to an appeal but it is a case where the judgment debtor died during the course of executing the proceedings and the respondent was impleaded as the legal representative of the judgment debtor and she had stepped into the shoes of judgment debtor. While, defending the case of the original judgment debtor, she has come forward with an application to establish her right of permissive possession in the E.A.No.3294 of 2007. The judgment, cited by the learned counsel for the respondent, reported in 2002(3) CTC 248 in between Govt. of Orissa v. M/s.Ashok Transport Agency and others would go to show the following principles namely,
Para:11
“Section 47 inter alia provides that all questions arising between parties to the suit in which decree was passed or their representatives and relating to the execution are required to be determined by the Court executing the decree and not by a separate suit. Explanation I provides that who are considered to be parties to the suit. Therefore, whether decree is executable against the appellant is required to be decided in the execution application and not by the separate suit. Sections 50 and 52 deal with cases when the decree could be executed against legal representatives. The said sections reads thus:-
“50.Legal Representative:- (1) Where a judgment debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
52.Enforcement of decree against legal representative:- (1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally”.
10. As per the aforesaid principle, we could see that the right of legal representatives impleaded in an execution launched against the original judgment debtor, who died during the pendency of the execution proceedings. Section 47 of CPC is the only answer, therefore, various judgment cited by the learned counsel for the respondent that an appeal only will lie against the order passed under Order 21 Rule 98 CPC and other provisions will not be applicable to the present case. Therefore, the revisions preferred by the petitioners are maintainable.
11. As far as the merits of the case is concerned, the respondent/judgment debtor has been impleaded as legal representative of the deceased defendant/ judgment debtor. The case of the plaintiff, in the suit was that the defendant was in the permissive possession of the testatrix and the property has been bequeathed excluding the defendant and therefore, the defendant has no title to the suit property, after the death of the testatrix and therefore, the direction was sought for to deliver the property against the defendant. The said suit was decreed. The respondent being his wife and legal representative of the deceased defendant claimed the right of permissive possession. The lower Court has based its decision on the admission of the petitioner who was examined as RW1 that the respondent/judgment debtor was living along with her husband from the date of her marriage on the permission of the testatrix. It is no doubt true that the permission was given to the defendant by the testatrix to live in the suit property. However, the defendant had denied the permissive possession in his written statement as well as counter filed in the E.P., and he claimed as having legal right over the said property. No doubt he has got a caveatable interest in the said property during the probate proceedings and the probate ended against him and the O.S.A.No.107 of 2005 was preferred by him against the order passed in the revocation application, which was also dismissed. Therefore, the claim of the respondent that she is continuing in possession of the suit property on the permission of the testatrix was based upon an independent claim of permissive possession granted to her by her mother-in-law, the testatrix. It is an admitted fact that she did not exercise her right of permissive possession along with her husband. It is a fact that the defendant outlived the testatrix and contested the probate proceedings and the suit filed by the petitioner and died during the pendency of the execution proceedings. It is not the case of the respondent/judgment debtor that she was given a permissive possession of the suit property independently, by the testatrix during her life time. She was living with her husband on the permission given to her husband. Any independent permissive possession claimed by the respondent should have been given after the life time of her husband during which time, the testatrix was not alive and the rightful owners are the life estate holder namely, the defendant’s sister. Therefore, the claim of the respondent cannot be an independent right for permissive possession. Even, if the petitioner as RW1 has admitted the permissive possession that can be shown to be wrong. Such kind of admissions are the weakest proof, in such circumstances, which would show its impossibility. Therefore, it can be seen that the respondent/judgment debtor could agitate her right claimed under her husband, the deceased defendant. The provisions under Section 50 CPC are clear to that effect. In such circumstances, the judgment of Hon’ble Apex Court reported in (1970) 2 MLJ 85 (SC) in between Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others would be relevant. The relevant passage would run thus:-
“A Court executing a decree cannot go beyond the decree between the parties or their representatives, it must take the decree according to its tenor and, cannot entertain any objection that it is 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.
When a decree which is a nullity, for instance where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”
12. Similar view has been taken by this Court in the judgment reported in (2007) 1 MLJ 484 in between M.Baskaran v.M.Sabathy, the relevant passage would run thus:-
“13. The executing Court cannot go beyond the decree unless it is shown that the decree was passed by a Court having lack of jurisdiction, which would make it nullity the powers of the Court under Section 47 CPC are quite different and are narrower that it power of Appeal, Revision or Review. The scope of Section 47 has been elaborately considered by the supreme Court in the decision Dhurandhar Prasad Singh Vs. Jai Prakash University AIR 2000 SC 2552 : (2001) 6 SCC 534 wherein the Supreme Court has held as under :
“23…….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 nullity, apart from the ground that 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…….
15.The Execution Court cannot go beyond the decree and consider its correctness or validity except when it is passed by a Court without jurisdiction. Non-joinder of parties is a mixed question of law and the fact and the same cannot be raised for the first time in the Execution Proceedings. In the decision reported in K.P.Antony Vs. Thandiyode Plantations (P) Ltd. AIR 1996 Ker 37, a Full Bench of Kerala High Court has held:
“…It will not be open to a party to challenge the judgment when it is sought to be enforced on the ground that the judgment is based on wrong conclusion or erroneous findings or on wrong application of law…”
13. On a careful understanding of the aforesaid judgment, this Court could see that the power of the executing Court is to go behind the decree and the executing Court can not go into the question of deciding what ought to be done in the trial. Therefore, the lower Court ought to have found that the respondent/judgment debtor, cannot claim a right which is not given to her independently, except as the legal representative of the judgment debtor. Therefore, the respondent/judgment debtor is bound by the decree and the lower Court has erred both in law and on facts in allowing the execution application and consequently to dismiss the execution petition. Therefore, it has become necessary for this Court to interfere with the orders passed by the lower Court and thereby set aside both the orders.
14. Accordingly, E.A.No.3294 of 2007 is liable to be dismissed and the E.P., is revived to pass suitable delivery orders by the lower Court. Accordingly, both the Civil Revision Petitions are allowed with costs.
.09.2010
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ssn
To
The X Assistant Judge,
City Civil Court,
Chennai.
V.PERIYA KARUPPIAH, J.,
ssn
Pre-delivery order in
C.R.P.NPD.No.2899 & 2900 of 2008
.09.2010