IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.05.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P. (NPD) No.1225 of 2007 and M.P.No.1 of 2007 Ramachandran ... Petitioner vs. Sankaraiah Naidu ... Respondent Civil Revision Petition under Article 227 of the Constitution of India against the fair and decretal of the Learned District Munsif cum Judicial Magistrate, Ambattur made in E.A.No.50 of 2004 in E.P.No.25 of 2004 in O.S.No.207 of 1991 dated 06.03.2007. For Petitioner : Mr.G.Jeremiah For Respondent : Mr.N.Damodaran O R D E R
The Revision Petitioner/Respondent/Petitioner has filed this Civil Revision Petition as against the order dated 06.03.2007 in E.A.No.50 of 2004 in E.P.No.25 of 2004 in O.S.No.207 of 1991 passed by the Learned District Munsif cum Judicial Magistrate, Ambattur.
2. The trial Court while passing orders in E.A.No.50 of 2004 in E.P.No.25 of 2004 in O.S.No.207 of 1991 on 06.03.2007 has among other things observed that ‘…since the Judgment Debtor had cunningly registered the Settlement Deed in favour of her son having full knowledge of the contested Judgment in O.S.No.207 of 1991 and order in E.P.No.142 of 2001, this Court feels that the Settlement Deed is not valid in view of the Sale Deed executed by Judgment Debtor in pursuance to the Decree on 11.06.2001. Further, on perusal of Ex.R1, it is evident that as early as 02.04.1991, notice has been sent under instructions to the petitioner and his Mother viz., the Judgment Debtor to the counsel for the Decree Holder, which shows that the petitioners had full knowledge of the suit. Further, on perusal of Ex.R2, it is the agreement entered into between the deceased Judgment Debtor and the Respondent/Decree Holder wherein the present petitioner had signed as a witness. Hence, it is evident that the petitioner had full knowledge of the transactions between the deceased Judgment Debtor and the Decree Holder and resultantly, dismissed the Application.’
3. According to the Learned counsel for the Revision Petitioner/Respondent/Petitioner, the order of the trial Court in dismissing E.A.No.50 of 2004 dated 06.03.2007 is contrary to Law, weight of evidence and all probabilities of the case and in fact, the sole Defendant expired on 12.01.2003 and therefore, all the proceedings after his death was an invalid one and non est in the eye of Law.
4. It is the further contention on the side of the Revision Petitioner that the trial Court had failed to note that the Sale Deed was executed on behalf of a dead person and the subsequent order of delivery is not a valid one since the same was passed against a dead individual.
5. Continuing further, the trial Court wrongly accepted the case of the Respondent/Decree Holder that he was not aware of the death of the deceased sole Defendant and admittedly, the execution of the Sale Deed and the order of delivery took place after the demise of the sole Defendant.
6. The gist of the contention of the Learned counsel for the Revision Petitioner is that an Executing Court cannot deliver a wrong and an excess property to a Decree Holder and in fact, Ex.P1 Settlement Deed dated 28.11.2002 related to a larger extent than the Execution Petition mentioned property, etc., and in any event, the Executing Court had not applied its judicial mind before passing the impugned order and consequently, prays for Civil Revision Petition in the interest of justice.
7. In response, the Learned counsel for the Respondent/Decree Holder supports the order passed by the Executing Court in E.A.No.50 of 2004 dated 06.03.2007 and submits that the Executing Court had rightly came to the conclusion that Ex.P1 Settlement Deed dated 28.11.2002 was not a valid one executed by the Mother of the Revision Petitioner and therefore, prays for dismissal of the Civil Revision Petition in the interest of justice.
8. The Learned counsel for the Revision Petitioner/Petitioner cites the decision of the Honourable Supreme Court PRATIBHA SINGH AND ANOTHER V. SHANTI DEVI PRASAD AND ANOTHER, AIR 2003 SUPREME COURT 643, wherein it is held as follows:-
“….Where in a suit for specific performance of agreement to sell immovable property, the map of suit property was not annexed to plaint, and the defendants who did not object to such fact promptly nor the trial Court insisted on such map and the map was filed for the first time in execution proceedings, however, the draft sale deed accompanied by a notice requiring objections to be made by judgment-debtor as provided by sub-rule (2) of R.34 of O.21 of the C.P.C. was not caused to be served by the Executing Court, and the judgment -debtors repeatedly insisted on draft sale deed being delivered to them enabling objections being filed and there was no determination by the Executing Court that the immovable property as delineated and demonstrated in the map accompanying the draft sale deed was the property forming subject-matter of agreement to sell and the decree. The Supreme Court observing that it was S.47 which would be invoked in instant case, gave directions to Executing Court to ascertain exact description of property.”
He also relies on the decision of this Court CHANDRA AND ANOTHER V. VENKATESAN, 2009 (2) CTC 160, wherein it is held as follows:-
” …I am of the considered view that the delay should be condoned. It is also seen from a copy of the written statement filed by the petitioner that they have admitted to the entitlement of the Respondent/Plaintiff to 1/3 of the suit property. Therefore, virtually, there is an admission on the part of the petitioners and hence Mr.K.A.Ravindran, Learned counsel for the respondent contended that the Court is again obliged to pass the same decree.’
9. It is to be pointed out that the Respondent/Decree filed E.A.No.127 of 2004 before the Executing Court to recognise one K.Thulasi Singam, K.Rajagopal, Leelavathi, Nageswar, Ramachandran (the Revision Petitioner in C.R.P.No.1225 of 2007) as legal heirs of the deceased Judgment Debtor viz., K.Ellammal and impleaded them as Respondents 2 to 6 in E.P.No.25 of 2004 and the said Application was allowed on 01.03.2005. Later, the Respondent/Decree Holder filed E.A.No.28 of 2006 before the Executing Court seeking permission to amend E.P.No.25 of 2004 as per the details of amendment furnished therein and the same was allowed on 27.04.2006. In E.P.No.25 of 2004, the heirs 2 to 6 Deceased Judgment Debtor/Defendant Ellammal were arrayed as Nos.2 to 6.
10. In E.P.No.25 of 2004 (E.P.No.142 of 2001), the Respondent/Decree Holder/Petitioner had sought the relief of the Judgment Debtor/Defendant to execute the Sale Deed in favour of the Decree Holder failing which the Honourable Court ought to execute the Sale Deed in favour of the Decree Holder on behalf of the Judgment Debtor/Defendant. Admittedly, E.P.No.25 of 2004 (E.P.No.142/2001) was filed under Order 21 Rule 34 of Civil Procedure Code. The date of Decree of the suit O.S.No.207 of 1991 was 11.06.2001. However, the date of death of the deceased Judgment Debtor K.Ellammal was on 12.01.2003. E.P.No.25 of 2004 (E.P.No.142/2001) was closed on 24.06.2003 because of the fact that a registered Sale Deed was executed in favour of the Respondent/Decree Holder.
11. The term ‘Representative’ in Section 47 of the Civil Procedure Code includes not only ‘Legal Representatives’ in the meaning of Heirs, Executors or Administrators but also ‘Representative in Interest’ viz., any Transferees of the Judgment Debtor interest or any Transferee of the Decree Holders interest who are bound by the Decree. Again, the term ‘Representative’ as employed in Section 47 of the Civil Procedure Code means an individual in whom the interest of a party to the suit has vested either by an act of the party (viz., a Transferee from the Party) or by an operation of Law which ordinarily means and includes testamentary and intestate succession upon the death of the party to the suit, etc., In fact, the term ‘Representative’ used in Section 47 of the Civil Procedure Code is obviously much wider than the terms ‘Legal Representative’ as mentioned in Section 50 of the Civil Procedure Code.
12. This Court aptly points out the decision JESEENTHA JOSEPH V LOUIS NEEKLAUSE, CHEPPALLIL ST.JOSEPH HOUSE, PATATHANAM WARD AND OTHERS, AIR 1997 KERALA 40, wherein it is observed that ‘in view of the enabling provision of R.22(2) of O.21 if a notice is not issued it will not affect the jurisdiction. The Court has power to dispense with issue of notice under O.21 R.22. When Court has got such power, mere omission to record the reasons by the Court will not invalidate the execution proceedings, etc.,.’
13. It is to be borne in mind that the Executing Court has duty bound to give effect to the decree in its substance and ought not to pass any order rendering the Judgment as a futile one. In construing the Decree, a Court of Law should lean towards construction rendering the Decree executable. As a matter of fact, an Executing Court cannot go beyond the tenor of the Decree. Normally, an Executing Court must not interfere with the Decree and executed the Decree as it stands, in the considered opinion of this Court.
14. It is useful for this Court to refer to the evidence of P.W.1 (First Revision Petitioner) to the effect that his Mother expired on 12.01.2003 and that he has come to know about itself and his sisters have been added as Legal Representatives of his deceased Mother in the E.P. Petition and that his Mother in respect of the suit property has executed a Settlement Deed in his favour on 28.11.2002 and that he is not aware of the order passed by the Court as to the execution of Sale Deed. Moreover, P.W.1/First Revision Petitioner in his evidence has stated that the suit property belonging to his Mother was bought by her out of her own income and that he was awre of O.S.No.207 of 1991 details 5 years before and that his Mother informed him that the case was over and that he had not engaged any Advocate to find out whether the suit was actually over or not.
15. Admittedly, the Decree was passed in the main suit on 11.06.2001. Consequent to the death of the Civil Revision Petitioner’s Mother in the main E.P., her heirs including the Civil Revision Petitioner was arrayed as Respondent Nos. 2 to 6 in the main execution proceedings as per order in E.A.No.28 of 2006 dated 27.04.2006, etc.,
16. As far as the present case is concerned, Ex.P1 Settlement Deed dated 28.11.2002 was executed by the deceased Judgment Debtor/Defendant viz., Ellammal in favour of her son viz., the Civil Revision Petitioner, after passing of the Decree on 11.06.2001 in the main suit O.S.No.207 of 1991.
17. In the instant case on hand, the Civil Revision Petitioner had categorically admitted in his evidence as P.W.1 before the Executing Court that he was aware of O.S.No.207 of 1991 details 5 years before and that the Mother had executed the Settlement Deed Ex.P1 dated 28.11.2002 in his favour. In E.A.No.252/2003 filed by the Respondent/Decree Holder for Delivery, Delivery was ordered as early as on 30.07.2003 and pending delivery being effected, E.A.No.50 of 2004 was filed by the Revision Petitioner. From the evidence of P.W.1, it is candidly clear that the Revision Petitioner being an one of the legal heirs of the deceased Mother viz., Judgment Debtor was aware of the entire transaction between his Mother and the Respondent/Decree Holder in law, an Executing Court is duty bound to give effect to the Decree in its substance and must not pass any order rendering the judgment of the trial Court as an otiose one and in that view of the matter, inasmuch as Ex.P1 Settlement Deed dated 28.11.2002 after passing of the Decree dated 11.06.2001 certainly the said document was executed by the Deceased Mother of the Civil Revision Petitioner (Judgment Debtor) in his favour only with the view to deprive the Respondent/Decree Holder in enjoying the fruits of the Decree and it is well settled principle of Law that a specific performance decree obtained by a Litigant/Party implies the Decree for possession and as such, the Civil Revision Petitioner cannot lay a claim as per Ex.P1 Settlement Deed dated 28.11.2002 which is non est in Law. In that view of the matter, E.A.No.50 of 2004 filed by the Revision Petitioner under Section 47 of the Civil Procedure Code is per se not maintainable in law and resultantly, the Civil Revision Petition fails.
18. In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The connected miscellaneous petition is closed.
.05.2010
Index :Yes/No
Internet:Yes/No
vri
To
The District Munsif cum
Judicial Magistrate, Ambattur.
M.VENUGOPAL,J.
VRI
PRE DELIVERY ORDER IN
C.R.P. NPD NO.1225 OF 2007
.05.2010
PRE DELIVERY ORDER IN
C.R.P. NPD NO.1225 OF 2007
TO
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Most respectfully submitted by
(V.RAJESWARI)
P.A. To Hon’ble Judges