ORDER
S. Ashok Kumar, J.
1. This revision is filed against the order dated 9.11.2005 made in E.A. No. 3285 of 2004 in E.P. No. 2248 of 2001 dismissing the said E.A., to record the petitioner/third party as an obstructor. The first respondent is the decree holder and respondents 2 to 4 are judgment debtors.
2. This Civil Revision Petition has a long checkered history. The dispute relates to the property situated at No. 5/13, Thambiah Reddy Road, West Mambalam, Chennai (hereinafter referred to as the ‘suit property’). The suit property originally belonged to the father of the 1st respondent, namely, M.Venkatesa Sarma. He executed a Will on 11.5.1973 and a Codicil on 25.1.1974 wherein a deviation clause is incorporated stating that if the 8th respondent, who is his son and quarrelling with his father, does not come for compromise during his life time, he could not get any right or interest in the property at all, which is his self acquired property. The 1st respondent, during the life time of his father, accepted the character of his father’s property as his absolute property and compromised with him during his life time. Venkatesa Sarma died on 6.10.1978.
3. During his life time Venkatesa Sarma had filed O.S. No. 3461 of 1972 against P.B. Venugopalan, A.N. Rajalakshmi and others for recovery of possession of suit property. It appears that the said A.N. Rajalakshmi was running a nursery school in the suit property. The suit was dismissed by the trial Court. A.S. No. 198 of 1981 was preferred by V. Rama Devi, daughter of Venkatesa Sarma, who was appointed as the executrix of the Will of the deceased Venkatesa Sarma. In that appeal the appellate Court held that the respondents i.e. A.N. Rajalakshmi and others were trespassers, but dismissed the appeal because the Will was not probated. Against the order of the lower appellate Court Second Appeal No. 809 of 1984 was filed by Rama Devi. During the pendency of the appeal, on 3.5.1985 the Will of Venkatesa Sarma was probated in O.P. No. 531 of 1980. The executrix of the Will died on 2.9.1986. The 1st respondent applied for Letters of Administration to administer the estate of Venkatesa Sarma in O.P. No. 533 of 1986. The petition was ordered on 6.3.1991 by AR. Lakshmanan, J., as he then was. Under the Will of Venkatesa Sarma the suit property has been settled upon 1st respondent. Finally S.A. No. 809 of 1984 was heard by K. Sampath, J., and the appeal was allowed on 30.4.1998 holding that the respondents therein namely, A.N. Rajalakshmi and others are trespassers and ordered delivery of possession to the decreeholder. As against the S.L.P. No. 14014 of 1998 was preferred by A.N. Rajalakshmi against the estate of Venkatesa Sarma represented by 1st respondent and the same was dismissed on 19.11.1999.
4. A suit for specific performance in C.S. No. 719 of 2000 was filed by A.N. Rajalakshmi and others on the basis of the observations made in S.A. No. 809 of 1984, against the 1st respondent for specific performance and obtained injunction not to execute the decree in O.S. No. 3461 of 1972. On filing of the vacate stay petition, the same was allowed. An appeal preferred by A.N. Rajalakshmi in O.S.A. No. 76 of 2002 challenging vacation of interim injunction was dismissed. S.L.P. No. 9194 of 2002 filed by A.N. Rajalakshmi against the order in O.S.A. No. 76 of 2002 was also dismissed on 27.1.2003.
5. Originally, the suit was laid against P.B. Venugopal and A.N. Rajalakshmi. After the demise of P.B. Venugopal, his wife Radha Bai and sons Sundaram and Mohan were brought on record. But, however the suit was dismissed as against Radha Bai, Sundram and Mohan since the plaintiff had given them up in the proceedings. Thus a decree came to be passed as against A.N. Rajalakshmi on 12.3.1980. Now, after the above said proceedings and after the dismissal of the SLP. No. 14014 of 1998, the first respondent filed E.P. No. 2248 of 2001 for delivery of possession. V. Kausalya was not a party to the E.P. but shown as one of the decree holders in the column in the E.P. A.N. Rajalakshmi questioned the execution of the decree by the first respondent without joining the other decree holder by preferring E.A. No. 1015 of 2003. On substantiating that the first respondent alone has the right and V. Kausalya who was wrongly retained in the cause title did not have any right, the Execution Court dismissed the said E.A., The said order was also challenged in CRP. No. 1446 of 2003 before this Court and this Court confirmed the order of the Execution Court by order dated 29.4.2004. The petitioner also preferred Transfer O.P. No. 130 of 2006 before the Principal Judge, City Civil Court, Chennai seeking transfer of E.P. No. 2248 of 2001. That petition was also dismissed with costs.
6. While the matter stood thus the revision petitioner entered into an agreement with the judgment debtors on 24.9.2005 and on the strength of this agreement filed E.A. No. 3285 of 2005 in E.P.No:2248 of 2001 on 10.6.2005 to record itself as an obstructor. The said application was dismissed by the executing Court on 9.11.2005 holding that the petitioner was claiming only through the judgment debtor. Against the same, the presnt revision has been filed.
7. Undaunted by the above orders the revision petitioner filed a suit in C.S. No. 231 of 2006 on 15.3.2006 and obtained an ex parte interim injunction in O.A. Nos: 259 to 261 of 2006 without notice to the 1st respondent. It is pertinent to note that the 1st respondent had filed a caveat before this Court and the same was in force. The revision petitioner, however, made an endorsement stating that no caveat is pending when he brought the matter before the learned single Judge. The first respondent filed vacate stay Petitions in O.A. Nos. 1546 to 1548 of 2006 and the same were allowed. In fact, Justice M. Chockalingam, has observed that at the time of granting interim injunction had it been brought to the notice that caveat was in force, the Court would not have passed the order of injunction. Against the said vacation of interim injunction, the revision petitioner preferred O.S.A. Nos. 139 to 141 of 2006 and the First Bench of this Court dismissed the said O.S.As by a detailed order dated, 25.7.2006. Aggrieved by the same, the revision petitioner preferred S.L.P. before the Apex Court and notice has been ordered. But, no stay has been granted.
8. Learned Counsel for the revision petitioner contended that the petitioner has purchased the suit property from the legal heirs of the judgment debtors for a sale consideration of Rs. 50 lakhs for acquiring its 58.33 undivided share of interest in the suit property. He also stated that the EA. No. 3285 of 2005 filed before the Executing Court under Section 47 CPC ought to have been construed as one filed under Order 21 Rule 97 and the Assistant Judge without conducting an enquiry like a suit after Amendment Act 104 of 1976 passed the impugned order.
9. Learned Counsel for the revision petitioner mainly contended that when the rights of the parties have been left open by reason of the judgement dated 6.2.1991 made in O.P. No. 533 of 1986 and O.P. No. 399 of 1989, wherein it is observed that “It is always open to a person or persons entitled to the estate of the deceased to agitate the question by way of suit in a civil court for adjudication of his/their rights. If he succeeds in establishing his rights the certificate granted will be rendered nugatory”. According to the revision petitioner, the first respondent was quarrelsome with his father during his life time he was disinherited as per the codicil. It is also contended that the first respondent has not been recognised in law as the absolute owner of the property and in such circumstances the grant made in favour of as De Bonis Non Administration is only for the limited purpose of representing the Estate which right he had lost by reason of alienation of the property by the daughters of late Venkatesa Sarma, who are the lawful owners of the property forming the subject matter. After demise of Ramadevi this Court granted Letters of Administration De Bonis Non Administration in favour of the first respondent, and also in favour of V. Kousalya, G. Govindarajan and Rajeswari and in such circumstances, the Execution Petition filed by the first respondent is not maintainable in view of the dispute between the judgment debtors and the decree holders. In such circumstances, the Execution Court cannot give effect to the decree without ascertaining the rights of the decree holders since the revision petitioner acquired a major share viz., 58.33% in the suit property from the legal heirs of Venkatesa Sarma, the claim of the first respondent, the grantee is only 4.17%, for which, he has to work out in a suit for partition.
10. A perusal of the earlier proceedings decided at various levels from the City Civil Court, this Court and in the Apex Court would show that very same and similar arguments were advanced by the petitioner were rejected. Even though according to the revision petitioner right and entitlement of the suit properties were left open to be decided in an appropriate forum by the parties in the O.S.A. No. 19 of 1992 which was preferred as against the granting of Letters of Administration to V. Kousalya, V. Rajeswari, and V. Suseelamma in O.P. No. 399 of 1989 along with the first respondent, during their life time, they have not agitated such right or entitlement. Because, after the dismissal of the said O.S.A., there was exchange of shares regarding the property at No. 12, Rangappa Reddy Street and the first respondent discharged the loan on the suit property and got documents and thus all the legatees got the properties as per the WILL and Codicil and accepted the first respondent’s right to the properties bequeathed under the WIL to him including the suit property. In S.A. No. 806 of 1984, the first respondent has been recognised as the holder of Letters of Administration and Legatee of the property. In sum and substance, the findings of the courts are the petitioner is abusing the process of law. V. Kausalya died on 2.1.2005. Till her death, she or other legatees did not question the first respondent’s claim and right, title to the property. Legal heirs of Kausalya cannot claim right, which does not exist to help the petitioners who took possession from the judgment debtors, who were declared as trespassers. The claim that the petitioners derived right and possession from the alleged decree holder is totally false and against their own documents viz., Memorandum of Understanding dated 29.4.2005. The legal heirs of V. Kausalya did not have any right. The alleged sale deed executed by the legal heirs of V. Kausalya will not convey any right to the petitioner. The petitioner took possession only from the judgment debtors on 29.4.2005 under the MOU and the relevant clauses appearing in page Nos. 29,39,41,43 and 45 and also schedule at page 49 would reveal that the petitioner has purchased litigation knowing delivery of possession was ordered.
11. In fact, the petitioner abused the process of law and got into possession of the property from persons who are declared as trespassers and deserves no indulgence. The petitioner as a transferee pendente lite as per Order 21 Rule 102 is not entitled to claim any relief under Order 21 Rule 99 to 101 CPC. Therefore the judgment debtors, legal heirs of Kousalya and the petitioner are bound by the earlier judgments and orders made by various courts. Even assuming that the petitioner having allegedly purchased only 58.33% of property cannot claim possession for the entire property and put up construction on the entire property.
12. In 2002 (5) CTC 483 (Banumathi @ Karunalammal v. A.P. Arthanari) this Court in a similar case after perusing the decisions in Shreenath v. Rajesh Elanthammal v. Alagar 2001 (1) CTC 287, Narayana Sarma v. Goldstone Exprots P.T. 2001 (4) CC 755 and Rajendran Gnanavolivu v. Sundar Gnanaolivu 2002 (2) CTC 52, which are to the effect that any person claiming a right over the suit property in respect of which he resists dispossession has the right to have his objection under Order 21, Rule 97 of CPC, but for the reason assigned by the execution court, the impugned order could be sustained. While observing the same, this Court further held as follows:
6. Under Rule 102, it is provided “Nothing in Rules 98 and 10 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any person.
7. In the case on hand, the petitioner herself would admit in the petition that she purchased the suit property on 26.4.1999 while the suit in O.S. No. 1306 of 1981 was pending. Under those circumstances, the execution Court need not entertain the petition to determine the fact that the petitioner was unaware of the litigation when she purchased the property and the question regarding the validity of the transfer made by the decree holder to their party….
13. In (B. Gangadhar v. B.G. Rajalingam), the Hon’ble Apex Court held thus:
If any obstruction is raised by putting up construction pendente lite or prevents the passage or access to the property pedndente lite the plaintiff is given right and the decree holder is empowered to have it removed in execution without tortuous remedy of separate suit seeking mandatory injunction or for possession so as to avoid delay in execution of frustration and thereby defeat the decree. The execution court therefor would be justified to order its removal of unlawful or illegal construction made pendente lite so that the decree for possession, or eviction, as the case may be effectively completed, executed and delivery of possession is given to the decree holder expeditiously.
14. In 1994 (1) L.W.21 (SC) (Chengalvaraya Naidu v. Jagannath), the Apex Court observed as follows:
The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. We are constrained to say that more often than not the process of the court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process as the convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation.
15. In Narayana Sarma v. Goldstone Exports P. Ltd. reported in 2001 (4) CTC 755, their Lordships of the Hon’ble Supreme Court held as follows:
If the resistance was made by a transferee pendente lite of the judgment debtor the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold, that he has no right to resist in view of the clear language contained in Rule 102… In other words, the Court is not obliged to determine a question merely because of the resister raised it. the questions which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties and the second is such questions must be relevant for consideration between the parties. e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings.
16. Factually, in this case, pending the proceedings at various stages and obtaining ex parte orders, the petitioner started construction of the building between 2005 and 2006 with the Police aid. In fact in the Transfer O.P. the petitioner admitted that there was only a dilapidated building existing. Thus, taking advantage of the agreement with the judgment debtors, the petitioner entered upon the suit property and during subsistence of the exparte interim orders started construction of a building on the suit property. It is also admitted that the Chennai Metropolitan Development Authority, Chennai has issued notice dated 19.9.2005 in respect of the superstructures standing in the suit property as the same was unauthorisedly erected without obtaining the plan approval.
17. It is also pertinent to note that while dismissing the O.S.A. Nos. 139 to 141 of 2006, the First Bench of this Court observed that the petitioner has tried to set up title to this property firstly by entering into an agreement with the judgment debtor and when he was unsuccessful in getting any relief, it has managed to obtain the sale deed from the grand children of Venkatesa Sarma with a view to set up a claim to the property.
18. It is very unfortunate that the suit has been originally instituted by first defendant’s father Venkatesa Sarma in the year 1972 and after his demise the first respondent prosecuted the suit, a decree has been granted on 12.3.1980, but still, the first respondent/decree holder who is now aged about 91 years, is not in a position to enjoy the fruits of the decree because of the multiple litigations filed at every stage invoking the Appellate Side Jurisdiction and Original Side Jurisdiction of this Court and also moving the Supreme Court and thus delivery of possession is being successfully thwarted by the revision petitioner and its predecessors. The matter went upto the Apex Court twice and even now a SLP is pending against the orders passed by the First Bench of this Court in O.S.A. Nos. 139 to 141 of 2006. In the said suit interim injunction has been obtained by the revision petitioner suppressing the caveat filed by the first respondent. Despite the vacation of the injunction or when the injunction was in favour of the decree holder, the revision petitioner flouring the orders of the courts proceeded with the construction activities, that too without obtaining approval from the CMDA. It is for the CMDA to take necessary legal action against the unapproved construction as per rules.
19. For the foregoing reasons, and in the facts and circumstances of the case I am of the view that the revision petitioner has not made out a case for interference with the findings of the learned X Assistant Judge, City Civil Court, Chennai, who has refused to record him as an obstructor as he has no right or interest over the suit property. Therefore, the Executing Court shall proceed with the execution proceedings. However, it is represented that if delivery of possession is effected in the middle of the academic year, the school going children may be affected. Considering the probable difficulty the students may face, the decree holder shall not effect delivery till 30th May, 2007.
20. It is also to be stated that admittedly, the revision petitioner, an Educational Trust, is running several schools in the city. Hence I am of the view that suitable measures could be taken by the revision petitioner to accommodate the students in the group of schools being run under its management, as was earlier done when the building was under construction.
21. With the above direction, this Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs.