Sri Nallalagu Polytechnic … vs D. Sivakumar on 23 February, 2000

ORDER

1. This Civil Revision Petition is directed against the fair and decretal order dated 18.8.1994 made in E.A.No.999 of 1989 in E.P.No.2 of 1989 by the Court of District Munsif, Ponneri thereby dismissing an application filed by the petitioner under Section 47 of the Code of Civil Procedure, 1908.

2. The petitioner Trust has filed the petition before the lower Court under Section 47 of the Code of Civil Procedure, 1908 contending that it purchased an extent of 7.72 acres of land in various survey numbers at Thandalkalani Village and established therein Sri Nallalagu Polytechnic Institution; that subsequent to the execution of Kamaraj Education and Research Foundation Trust Deed, the administration of the Polytechnic came to be vested in the present Trust Board and the petitioners carry on the administration of the said Polytechnic as on today and that the properties including the sale deeds stand in the name of the Board of Management of Polytechnic.

3. The further contentions of the petition are that on 1.3.1989 at 10.00 a.m. the respondent came to the Polytechnic with 20 persons and informed that he had come with the Bailiff to take delivery of the properties mentioned in the decree made in C.S.No.130 of 1979; that on protest, recording to the effect of the execution having been earned out, they left the place; that in fact, the petitioners have filed E.A.No.361 of 1989 against the respondent for redelivery of the entire property covered under the present Execution Petition under Order 21, Rules 99 and 100 but the present application is more appropriate; that the Execution Petition itself is not maintainable under Section 39 of the Code of civil Procedure since the Court of District Munsif, Ponneri has no jurisdiction to entertain it; that the decree-holder has chosen a wrong forum and hence the proceedings are void ab initio; that the petitioners are not parties to the suit, in spite of being the representatives in respect of the purchase of the property in 1979 and on such grounds would pray for holding an enquiry, into the aspect of jurisdiction and on the question of alleged delivery and dismiss the Execution Petition.

4. In the lengthy counter filed, the respondent would allege that the suit in C.S.No. 130 of 1979 for partition and separate possession of his share in his ancestral property had been filed by him through his mother and next friend on 28.2.1979 along with an application in A.No.892 of 1979 for injunction restraining the first defendant in the suit, viz his father, from alienating any of the suit property and that the injunction was granted; that the third defendant in the suit viz Senriaivazh Nadargal Sangam, T.V.A.Nallalagu Nadar School Managing Board, represented by its Manager A.G. Srinivasaga Nadar were served with suit summons on 30.8.1979, but he did not choose to appear before the High Court and hence a preliminary decree was passed on 4.1.1984; that on 18.9.1987, he filed an application in A. No. 4414 of 1987 for declaring him a major and to discharge his mother from guardianship and the said application was ordered on 29.10.1987; that he also filed Application No. 4329 of 1987 for amending the decree and that application was ordered on 12.11.1987; that on 14.11.1987 he filed an application in Application No. 5870 of 1987 for appointment of Advocate-Commissioner for dividing ‘B’ and ‘D’ schedules of the suit properties by metes and bounds and to allot him half share and that application was also ordered on 21.12.1987 and the Advocate-Commissioner visited ‘B’ and ‘D’ schedule properties and submitted his report on 29.3.1988; that then he filed ail application in Application No.1892 of 1983 on 14.4.1988 for passing a final decree in terms of the Commissioner’s Report and final decree was passed as regards the landed properties on 26.8.1988; that he filed E.P.68 of 1988 on the file of the High Court of Judicature at Madras seeking possession of his half share and since the properties are situated in Thandalkalani Village, Red Hills, he got the said Execution Petition transferred from High Court to the Sub Court, Poonamallee, who in turn transferred the Execution petition to the Court of District Munsif, Ponneri, wherein it got renumbered as E.P.No.2 of 1989; that the third defendant to the suit i.e. the petitioner herein in spite of being served with notice in the Execution Petition on 6.1.1989, did not choose to appear before the Execution Court whenever the Execution Petition was taken up for hearing on many occasions and ultimately on 24.2.1989, since none of the respondents appeared before the Court of District Munsif, Ponneri, the said Execution Petition was ordered resulting in the respondent taking possession of the landed properties allotted to his share on 1.3.1989.

5. The further contentions of the counter filed by the respondent are that the petitioner calling himself a third party filed E.A.No.361 of 1989 in E.P.No.2 of 1989 for redelivery of the entire property contending that possession had been taken from third party; that the Polytechnic was not the owner of the land and possession ought not to have been taken from the said Polytechnic; that he filed detailed counter in E.A.No.361 of 1989 in E.P.2 of 1989 contending that the petitioner herein is none other than the 3rd defendant to the suit in C.S.No.130 of 1979; that one A.N.Srinivasaga Nadar purchased the properties in the name of Chennaivazh Nadargal Sangam for the purpose of starting an educational institution in the name of his father T.V.A.Nallalagu

Nadar; that the sale deed does not stand in the name of the Board of Management of the Polytechnic since it was started in the year 1983 only; that neither the Polytechnic nor the present Trust was in existence at the time of the sale; that the sale deed obtained by Srinivasaga Nadar from the father of the respondent was after the institution of the suit in C.S.No.130 of 1979 and hence it is hit by the doctrine of lis pendens; that since the petitioner was not able to give any satisfactory explanation for the contention of transferee pendente lite he has taken the defence that the Court has no pecuniary jurisdiction; that knowing full well that he cannot succeed in the proceeding instituted under Order 21, Rule 99 of the Code of Civil Procedure, the present application under Section 47 of the Code of Civil Procedure has been filed and it is not maintainable.

6. The further contentions of the counter are that the properties have been purchased by Chennaivazh Nadargal sangam and the purpose of purchase as mentioned in the sale deed is for starting a College in the name of T.V.A.Nallalagu Nadar and hence it is false to allege that the properties were purchased by the Managing Board of the Polytechnic; that since most of the sale deeds have come into existence during the pendency of the suit, they were hit by the doctrine of lis pendens; that in the Project Report submitted to the Government of Tamil Nadu, only an extent of 2.56 acres of the land comprised in Survey No. 10/2 is said to have been conveyed to the Polytechnic; that the other properties are with the third defendant viz Chennaivazh Nadargal Sangam and hence the Polytechnic has no say in the matter; that he has taken possession of 7.99 acres of land validly; that the petitioner under the garb of Trust cannot have any right to defend the case of the third defendant; that having failed to appear in the Execution Petition and having filed application under Order 21, Rule 99 of the C.P.C. it is not at all open to the petitioner to file an application under Section 47 of the C.P.C. and hence this petition is barred by the doctrine of constructive res judicata and by limitation; that a third party cannot maintain an application under Section 47 of the C.P.C. and this application is only to delay the ends of justice.

7. Regarding jurisdiction, the respondent would contend that the Court of District Munsif, Ponneri, has got jurisdiction since the suit properties situate within the territorial jurisdiction of that court, and hence the Sub Court, Poonamallee rightly transferred the matter to that Court for execution; that for the purpose of delivery of immovable property, pecuniary jurisdiction is not a bar nor relevant; that the petitioner is not still sure whether he is direct party to the proceedings or the representative of the judgment-debtor, so by filing two different applications under different provisions of law, without alleging the specific stands, the petitioner is attempting to confuse the issues; that the respondent has taken possession of the properties through the Court under a valid decree passed in the suit; that no injustice is caused to the petitioner by the delivery effected in his favour; that the petitioner cannot agitate the correctness of the execution proceedings at this belated stage; that there is absolutely no merit in the petition and would pray for dismissing the same.

8. The Court of District Munsif, Ponneri, wherein the application has been made, having framed two points for determination viz (1) Whether the petition is to be allowed for the reasons assigned in the petition? and (2) What reliefs, the petitioner is entitled to?, has allowed the parties to let in evidence, wherein one witness has been examined on the part of the petitioner as P.W.1 and marked two documents as Exs.A.1 and A.2, have been marked Ex.A.l dated 5.12.1975 being the sale deed and Ex.A.2 dated 28.9.1979 being another sale deed. On the part of the respondent, no oral or documentary evidence has been adduced. Yet another witness has been examined as Court Witness C.W.1 and three documents have been marked as Exs.C.l toC.3.Ex.C.1 dated 27.2.1989 being the delivery warrant, Ex.C.2 dated 26.8.1988 being the copy of the decree made in C.S.No.130 of 1979 on the file of the High Court of Judicature at Madras and Ex.C.3 dated 1.3.1989 being the delivery receipt.

9. On the above evidence placed on record, the learned District Munsif, Ponneri, having heard the arguments of the learned counsel for both and appreciating the evidence in his own way, has ultimately dismissed the petition without costs. Aggrieved, the petitioner therein has come forward to file the above Ciyil Revision Petition on grounds such as (i) the lower Court has erred in holding that the petitioner is not a representative of the judgment debtor and hence not entitled to maintain the application under Section 47 of the C.P.C.; (ii) that the lower Court failed to note that if the petitioner is not entitled to maintain the application under Section 47 of the C.P.C., it amounts to the lower Court having no jurisdiction to make an adjudication of the disputes raised therein; (iii) that the lower Court has erred in holding that the transfer of properties is hit by the provisions of the Section 52 of the Transfer of Property Act; (iv) that the Court below erred in holding that the proceedings are barred by res judicata; (v) that the lower Court further erred in appreciating the scope of Sections 39 and 41 of the C.P.C. in their proper perspective; (vi) that the lower Court failed to note that it is mandatory that the transferee Court must have both pecuniary and territorial jurisdiction to try the suit in which the decree was passed; (vii) that the decision reported in Manganese Ore (India) Ltd. Nagpur v. M/s. Mangilal Rungta, Calcutta, A.I.R. 1981 Del. 114 cited before the lower Court also reiterates this mandatory requirement; (viii) that the Court below failed to note that the value of the suit in which the decree was passed is more than Rs.l,00,000 and hence the Munsif Court, which is the transferee Court had no pecuniary jurisdiction; (ix) that the lower Court had also no jurisdiction to entertain the Execution Petition and all the orders made by it in the E.P.No.2 of 1989 are null and void since it is bereft of jurisdiction; (x) that the lower Court though admits that there were certain defects in the delivery of possession, it has erred in holding that it cannot be concluded that the delivery was not effected; (xi) that in view of the manner in which the Amin had effected the actual delivery of possession, the lower court ought to have held that the delivery was not at all effected; (xii) that the lower court failed to note that the decree-holder did not even examine himself; (xiii) that the lower Court further failed to note that the

entire proceedings held by it are all wholly void, since it has no jurisdiction to entertain the Execution Petition and make any order.

10. During arguments, the learned senior counsel Sri. V. Shanmugham appearing for the revision petitioner would contend that this revision petition has arisen out of dismissal of the application filed under Section 47 of the C.P.C. by the revision petitioner herein praying thereby to dismiss the E.P.No.2 of 1989 filed by the respondent/ decree-holder; that the decree has been transferred to the wrong Court for execution; that tile Execution Petition is null and void for lack of jurisdiction; that to the said petition filed by the petitioner under Section 47 of the C.P.C., the respondent herein filed a counter affidavit objecting the petition on various grounds, the first objection was that the petitioner is not the representative of the judgment-debtor and therefore he is not entitled to file an application under Section 47 of the C.P.C. questioning the validity of the execution. The second objection was that the present respondent filed E.A.361 of 1989 in the said E.P.No.2 of 1989 for delivery of possession and the delivery was recorded; that the learned counsel would call the said delivery as paper delivery since it is the petitioner, who is in physical possession from 1979 onwards, running a college therein; that the ground on which the petitioner filed earlier application was that he was a third party to the decree and he could not be dispossessed in execution of the decree as per E,A. No.361 of 1989 under Order 21, Rule 99 of the C.P.C.; that it has been averred in that application that the property has been purchased by Chennaivazh Nadargal Sangam for the purpose of establishing Nallalagu Polytechnic and the present petitioner is the Nallalagu Polytechnic Managing Committee represented by the Secretary; that the petitioner constructed the building and established the College and is in possession and management of the same; that in the application, the decree-holder stated that Nallalagu Polytechnic is the judgment-debtor and hence as per E.A.361 of 1989, they are bound by the decree, in which they were set ex parte; that it is the contention of the other side that since the petitioner filed E.A.No. 361 of 1989 earlier and withdrew the same, it is constructive res judicata and therefore the petitioner is not entitled to maintain the present application filed under Section 47 of the Code of Civil Procedure.

11. The learned senior counsel for the revision petitioner would further contend that the third objection raised by the decree-holder is that the petitioner purchased the property during the pendency of the suit in C.S.No.130 of 1979 and therefore he is not entitled to challenge the execution and that he is bound by it; that the fourth objection raised by the decree-holder is that in the delivery effected by the Court Amin, there are no legal infirmities. At this juncture, the learned senior counsel would lament that the learned District Munsif sustained all the four objections raised by the decree-holder and dismissed the application filed by the petitioner.

12. Continuing to argue, the learned senior counsel for the petitioner would contend that so far as the first objection raised by the other side i.e. the

question of jurisdiction under Section 39 C.P.C. is concerned the transferee
Court must have both territorial and pecuniary jurisdiction and would cite a
judgment delivered in Manganese Ore (India) Ltd. Nagpur v. M/s. Mangilal
Rungta, Calcutta, A.I.R. 1981 Del. 114, wherein in Para No.4. imposing
conditions under which a decree can be sent, as laid down under Section 39 of
the C.P.C., particular mention is made for Section 39(3) of the C.P.C.. which
reads:

“For the purposes of this Section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such court would have jurisdiction to try the suit in which such decree was passed.”

Citing the above judgment, the learned senior counsel would lay emphasis that both territorial and pecuniary jurisdictions must be there for the Court of District Munsif, which is executing the decree, but in fact, the Court of District Munsif, Ponneri, did not have such jurisdiction at all. At this juncture, the learned senior counsel would cite another judgment delivered in Jagat Kishore Prasad Narain Singh v. Surendra Kumar Bhadani and others, wherein in Para No. 6 it is held:

“When a decree is transferred by a Court which passed it for execution by
a Court situate in another district, the procedure prescribed by Rules 5 and 8 of
Order 21 of the Code has got to be followed. The jurisdiction to transfer a
decree for execution from one Court to another however arises not under Order
21, Rule 5 but under Section 39, Civil P.C. and Order 21, Rules 5 and 8 merely
prescribe the procedure by which the transfer is to be carried out.Therefore,
failure to observe the provisions of Order 21, Rule 5 or Rule 8 amounts to a
mere irregularity and does not affect the jurisdiction of the Court to which the
decree is transferred to execute the decree.”

Citing the above judgment, the learned senior counsel would clarify that Order 21, Rule 5 is the procedure but the power is conferred under Section 39 of the C.P.C.

13. Coming to the next objection that the petitioner is not the representative of the judgment-debtor, the learned Counsel would cite Para No.5 of the counter affidavit filed by the respondent, wherein it is admitted that the petitioner herein is none other than the third defendant in the suit in C.S.No.130 of 1979 that A.N.Srinivasaga Nadar purchased the properties in the name of Chennaivazh Nadargal Sangam for the purpose of starting an educational institution in the name of his father T.V.A.Nallalagu Nadar; that the sale deed did not stand in the name of the Board of Management of the Polytechnic because the Polytechnic was started only in the year 1983 and since neither the Polytechnic nor the present Trust was in existence at the time of the above sale deed and hence naturally, they could not be shown; that for the next contention that the sale deed obtained by Srinivasaga Nadar from the father of the respondent herein was after the institution of the suit in C.S.No.130 of 1979 and that it was hit by the doctrine of lis pendense and

hence the petitioner cannot have any say in the matter, the learned senior counsel would answer that the main contention of the respondent is that the petitioner was the representative of the judgment-debtor and since the entire transaction is hit by the doctrine of lis pendense, the petitioner could not have any defence and the petition filed under Order 21 Rule 99 was not maintainable.

14. Citing the above passage from the counter of the respondent, the learned senior counsel for the petitioner would contend that even if it is hit by the doctrine of lis pendense, the petitioner is entitled to maintain another application under Section 47 of the C.P.C and would cite yet another judgment delivered in Gangabai Gopaldas Mohata v. Fulhand and others, wherein in Para No.8, it is held as follows:

“Section 47 of the Code is couched in very wide language. The very object is to avert another suit concerning the decree under execution. Sub-section (1) of Section 47 of the Code says that –

“47.(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.”

Perhaps Sub-section (1) would not have made it clear that a dispute between a party to the suit and another claiming to be his representative could have been resolved in execution proceedings. But that doubt no longer subsists in view of sub-section (3) which reads:

“47.(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this section,
be determined by the Court.”

“Even a transferee pendente lite is a representative of his transferor within the meaning of sub-section (3) of Section 47. One who claims to be a transferee by operation of law would as well be a representative and if his claim to be a representative is disputed either by the opposite party or by the party under whom he claims, such dispute must also be resolved by the executing Court itself. The word “representative” used in Section 47 is obviously much wider than the words “legal representative” as used in Section 50 of the Code.”

15. Reading out para No;6 of the Order of the lower Court, the learned senior counsel for the petitioner would contend that the petitioner is not challenging the validity of the decree so as to conclude that it is hit by the doctrine of lis pendense but only the execution of the decree. Regarding the question of res judicata under Section 11. of the C.P.C., the learned senior counsel would cite another judgment delivered in Ameena Amma (dead) through L.Rs. and others v. Sundaram Pillai and others, wherein it is held:

“… the application under Order 21 Rule 35 of the Code of Civil Procedure was dismissed on September 24. 1958 solely on the ground that the execution

petition was not maintainable against defendant 3 as there was no decree against him. There was no adjudication on merits or investigation into the claim of defendant 3 in that execution petition. Once this position becomes clear it is obvious that the order dated September 24,1958 merely held that the execution petition in the earlier suit could not be filed against defendant 3 directly. There was no need to challenge that order in appeal or otherwise as that was the correct order. It was only when the second Execution Petition No.819 of 1960 was filed against the original judgment-debtor (defendant 2) and the defendant 3 in suit i.e. sub-lessee obstructed the ‘Amin’, that the present suit was filed under the provisions of Order 21 Rule 103 of the Code of Civil Procedure and there was no legal bar to it either of res judicata or otherwise. It is settled law that the general principles of Section 11 of the Code of Civil Procedure apply to execution proceedings as well but the basic criteria for applying the principles of res jadicata is that the order must be between the same parties and that the malter should have been heard and decided by such court….”

Citing the above judgment, the learned senior counsel would lay emphasis on the terms that “the matter must be heard and decided” and would contend that since there is no adjudication on the application filed by the petitioner, there is no bar under Section 11 of the C.P.C. for filing another application of this sort.

16. Dealing with the last objection raised by the respondent, that is, the infirmity that is caused to the execution, the learned counsel for the petitioner would cite from the order passed by the lower Court to the effect that he had withdrawn the earlier application made in E.A,No.361 of 1989 filed for redelivery of the property, wherein the learned District Munsif arrives at the conclusion that the delivery had been effected, but the learned senior counsel would call it paper delivery and not a physical one. He would point out that the learned District Munsif himself says that though there are infirmities in the execution, it cannot be concluded that the delivery was not effected. The learned senior counsel would contend that the lower Court dismissed the petitioner’s application on all the objections raised by the other side and that on any case, he is entitled to be reheard.

17. In reply, Mr.P.Gopalan, the learned counsel appearing for the respondent would contend that the respondent in the above Civil Revision Petition filed the suit in C. S.No. 130 of 1979 before the High Court of Judicature at Madras for partition and separate possession against his father and the purchasers and along with the suit. He also filed Application No.892 of 1979 for injunction restraining the first defendant in the suit i.e. his father from alienating any of the suit properties and the same was granted; that so far as the first item in the schedule is concerned, it had been purchased in the year 1975; that items No.2 and 3 were purchased after the suit in the year 1979; that all these properties were purchased by Srinivasaga Nadar, who is the third defendant in the suit and the present petitioner came long after; that the application filed under Order 21 Rule 99 had been withdrawn by the petitioner and the reason for withdrawing the said application, as given in the petition, is that they filed E.A.No.361 of 1989 for redelivery of the entire property covered under the present Execution Petition under Order 21, Rule 99 and 100

and that application was filed without verifying the actual sale deeds and the nature of rights and the present petition is more proper and comprehensive to hold an enquiry into the whole matter.

18. Continuing to argue, the learned counsel for the respondent would contend that the petitioner relies on Section 47(3) of the C.P.C. claiming to be the representative of the original third defendant Chennaivazh Nadargal Sangam, T.V.A.Nallathambi Nadar College Management Board by President A.N.Srinivasaga Nadar; that there is no indication as to how the petitioner became the representative of the original third defendant; that even according to the petitioner, no document has been filed before the Court below to show his connection with the third defendant in the suit; that before the Court below, in the present application, the petitioner shows two sale deeds executed in favour of Chennaivazh Nadargal Sangam, as seen in Para No.3 of the petition i.e. an extent of 3.76 acres of land in S.No.31 and another extent of 1.40 acres in S. No. 43/1 were purchased from one M.G.Devaraj under a sale deed dated 5.12.1975; that likewise, another extent of 2.56 acres in S.No.10/2 had also been purchased from the said Devaraj on 28.9.1979 and that the petitioners are in possession and enjoyment of the same by putting up various constructions; that admittedly, the Polytechnic need not purchase any property nor any transfer of interest took place. At this juncture, the learned counsel would cite the judgment delivered in K.Mariappan and five others v. Chennaivazh Nadargal Sangam and three others, and would say that in the context of the said orders passed in O.S.A.Nos.305 to 307 of 1995 dated 1.12.1995 by the Division Bench of this Court, the other side also filed C.S.Nos.1566 and 1567 of 1994 and obtained interim injunction stating that they were in possession; that on appeal filed by the respondent, in the above cited case, all the appeals were allowed. He would further contend that the delivery authority put the respondent in possession and that when once they suffered a decree in C.S.No.130 of 1979, they cannot say that they have not been given notice and added to that all are vacant lands and it is the law that possession follows title.

19. The learned counsel for the respondent would further contend that the Apex Court confirmed the above order of the Division Bench in S.L.P.Nos.27930 and 27931 of 1995 and in spite of such assertion, the petitioners say that they continue to be in possession of the property.

20. Answering the averments of the petition to the effect that in any event, the petitioner as representative of the party in respect of the property purchased in 1979, can question the execution as it a is a question arising between the parties in the suit of the representative as it goes to the very root of the maintainability of the Execution Petition, the learned counsel for the respondent would point out from the Commissioner’s Report in the C.S.No.130 of 1979 wherein it is clearly stated that “after giving notice again to the 3rd defendant/ respondent and to the college authorities, on 21st February, 1988, I have duly inspected the suit land at 16, Thandal Kalani

Village, Saidapet Taluk, Chengelput District. Counsel for the plaintiff/applicant, 1st defendant/respondent were present on that day. With the service of the Surveyor, Village Administrative Officer and three of his men I inspected and measured the entire land mentioned in the plaint B and D schedules”. Then, the learned counsel for the respondent would cite para No.5 of the counter, wherein it is stated that the very same petitioner, calling himself a third party filed E.A.361 of 1989 in E.P.No.2 of 1989 for redelivery of the entire property contending that he was a third party and the possession had been taken from the third party and therefore the application under Order 21, Rule 99 was maintainable. The learned counsel for the respondent would further argue that since the petitioner is claiming to be the legal representative of the third defendant to the suit in C.S.No.130 of 1979, he has to file the document to the effect that the Polytechnic was started only in the year 1983 and he has to show as to what independent document is there to show that he was the successor of the third defendant to the suit.

21. So far as the transfer of the decree under Section 39 of the C.P.C., the learned counsel would contend that the answer lies in Section 42 of the C.P.C. Citing Section 21(1) of the C.P.C., which reads:

“No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.”

The learned counsel for the respondent would contend that no such objections could be raised to the local limits of the Executing Court. He would cite a judgment delivered in Koopilan Uneen’s Daughter Pathumma and others v. Koopilan Uneen’s Son Kuntalan Kutty Dead by L.Rs. and others, . wherein Section 21(1) of the C.P.C. regarding the objection as to the place of suing has been dealt with and since the party was unable to put forward any reason for having chosen a particular place for suing, the Apex Court observed that the provisions of Sub-section (1) to Section 21 of the C.P.C. made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded, thus refraining from going into the question of the correctness of the finding arrived at by the High Court.

22. The learned counsel for the respondent would then cite Section 99-A of the C.P.C. which contemplates:

“99-A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected –

Without prejudice to the generality of the provisions of section 99, no order under Section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the
case.”

23. The learned counsel for the respondent would then cite a judgment delivered in Patel Jayantilal Sendhidas v. Ambalal Maganlal Kothari, wherein reference has been made to the decision delivered in Vasantrao Laxmanrao Sahane v. Sanghvi Amritlal Becharlal, 1966 (7) Guj. L.R. 840, in which it has been held:

“The High Court is not bound to interfere in revision under S. 115 Civil P.C. in all cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect lo a technicality which would not further the ends of justice. Where the High Court finds that substantial justice has been done between the parties by the order of the subordinate Court, the High Court will not interfere with such order merely because the case comes within any of the three clauses of Sec. 115.”

24. The learned counsel for the respondent would cite yet another judgment delivered in Smt. Pushpa v. Ganpatsingh and others, wherein it is held:

“The judgment-debtor having not taken objection, at the earliest in his first objection petition, he is precluded from taking such objection on the principle of constructive res judicata inasmuch as it was incumbent upon him to raise all the objections which were available to him when the first objection was filed.”

25. The learned counsel for the respondent would contend that for all the 8.72 acres of land, which includes many properties, the first defendant in the suit is not the purchaser and if he has not raised all the points, the petitioner cannot file the petition under Section 47 of the C.P.C., since constructive res judicata will become operative. At this juncture, the learned counsel for the respondent would refer the judgment reported in Manganese Ore (India) Ltd., Nagpur v. M/s. Mangilal Rungta, Calcutta, A.I.R. 1981
Del. 114 wherein the ‘competent jurisdiction’ is dealt with.

26. The learned counsel for the respondent, would then cite a judgment delivered in Narain Kumar v. Neki Ram and others, wherein it is held:

“No objection was raised by the petitioner regarding the pecuniary jurisdiction of the learned Subordinate Judge before filing the objection petition under S. 47 of the Civil P.C. in the execution proceedings initiated by the decree-holder to execute the decree. The observations made by the Supreme Court in Kiran Singh’s case, are squarely applicable to the facts of the instant case. No foundation has been laid by the petitioner to warrant a finding that the lack of pecuniary jurisdiction on the part of the learned Subordinate Judge has prejudiced the case of the petitioner on merits. The ratio of the decisions in Kiran Singh’s case, and Mahadeo’s case, also support the case of Neki Ram, decree-holder, that the objection regarding the lack of pecuniary jurisdiction of

the learned Subordinate Judge cannot be raised in execution proceedings by the petitioner in the absence of any prejudice on merits.”

27. Laying emphasis on the fact that the petitioner has not filed any
document to show that he is the representative of the third defendant to the
suit, the learned counsel for the respondent would contend that the petitioner
cannot rely on the counter filed by the respondent, but he has to prove his case
independently. He would further contend that when the third defendant to the
suit did not raise the question of jurisdiction, the present petitioner has no right
to raise the same; that since the said question has not been raised before the
Executing Court, the same cannot be raised now and would say that there is no
consequential failure of justice in delivering possession of the properties to the
decree-holder.

28. The learned counsel for the respondent would then cite two judgments viz. (1) Smt.N.Pariyakkal and others v. The Cooperative Tourist and Transport Society Ltd. and another, and (2) Gosto Behari Pramanik v. Smt. Malati Sen and others, . In the first judgment cited above wherein it is held:

“Where a court does not lack inherent jurisdiction, but has irregularly assumed jurisdiction, it is well settled that the proceedings before it are not vitiated. Where the court of Munsiff thinking that in view of the amended law he is not competent to execute eviction decree passed by him and thus transfers it to the Court of Civil Judge in absence of an application by the decree-holder, there is, at the highest irregular assumption of jurisdiction by the transferee court and there was no inherent lack of jurisdiction for the transferee court to execute the decree. The exercise of jurisdiction by the transferee court, in such circumstances therefore, is not vitiated.”

In the second judgment cited above Gosto Behari Pramanik v. SmtMalati Sen and others, it has been held:

“The principle of waiver regarding territorial jurisdiction had statutory recognition in old S. 21. Civil P.C., and such recognition has now been extended to pecuniary jurisdiction as well by insertion of new sub-section (2) to Section 21 by Amendment Act 104 of 1976. Even before such amendment it was held by different High Courts that pecuniary jurisdiction stood on the same footing as territorial jurisdiction. Therefore, want of territorial or pecuniary jurisdiction, if any, is an irregularity and does not make a decree a nullity. A decree based on compromise between the parties to a suit is not void or a nullity merely because it involves an amount which exceeds the pecuniary limits of jurisdiction of the Court that passed it.”

Citing the above two judgments, the learned counsel for the respondent would contend that the question of pecuniary jurisdiction does not at all arise at this stage and would repeat that since the third defendant had not raised the question of jurisdiction in the Execution Court, the same cannot be raised
now*

29. The learned counsel for the respondent would then cite another judgment delivered in Ram Dayal and others v. Smt.Kisturi and others, wherein it is held:

“The record of the previous execution application is here and it is clear from it that the judgment-debtors did not object to the jurisdiction of Munsif Court at Shahpura to execute the decree in the first instance when notice of the application was served on them. It is only during the course of the second execution application that this objection has been raised. But since they have failed to raise this objection in the first instance it will be taken that they have waived it and, therefore, it is not open to them to raise it in the second execution application…..”

30. The other judgment cited by the learned counsel for the respondent is one delivered in Marriddi Janikamma and others v. Hanumantha Vajjula Paradesi Sarma and others, A.I.R. 1980 AP 209 wherein it is held:

“The transmission of the decree by the Court which passed the decree directly to the executing Court which is in a different district without routing the same through the District Judge is only an irregularity and not an illegality. Even otherwise, if objection to the decree is not taken in the first instance, it must be deemed to have been waived and cannot be raised at a later stage.”

31. The other judgment cited by the learned counsel for the respondent is one delivered in Maharaj Kishore Khanna v. Raja Ram Singh and another, A.I.R. 1954 Pat. 164 wherein it is held:

“… The jurisdiction to transfer a decree for execution from one court to another arises not under Order 21 Rule 5 but under Section 39, Civil P.C. Order 21 Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out. It is clear that failure to observe the provisions of Order 21, Rule 5 or Rule 8 is a mere irregularity and does not affect the jurisdiction of the Subordinate Judge of Purnea to execute the decree.”

32. The other judgment cited by the learned counsel for the respondent is one delivered in Firm Shivalomal Gopaldas v. Firm Bholashah Lakshmichand, A.I.R.1946 Sin. 103 wherein it is held:

“It was not necessary that a Court to which a decree was transferred for execution should be a Court having the same pecuniary jurisdiction as the Court which transferred the decree.”

Citing the above judgments, the learned counsel for the respondent would exhort that in the present case, the District Munsif, Ponneri has got territorial jurisdiction and also got jurisdiction to the extent that the decree has to be executed and there is no consequential failure of justice; that it is a revision filed under Section 115 of the C.P.C. and since no miscarriage or failure of justice, has taken place, the order of the lower Court has to be confirmed.

33. Focussing his attention on the revisional powers of this Court under Section 115 of the C.P.C., the learned counsel for the respondent would cite two judgments. The first one is delivered in Chennichi alias Parikkal, wife of

Mariappa Goundar v. D.A.Srinivasan Chettiar, S/o. Arunachala Chettiar, 1970 (I) M.L.J. 234 wherein it is held:

“The exercise of the revisional powers of the High Court under Section 115 Civil Procedure Code, is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve and ends of justice and not to deny or defect it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction.”

The second judgment cited by the learned counsel for the respondent is one delivered in S.N.Kuba v. P.P.I. Vaithyanathan, 1988 T.L.N.J. 1 wherein the Division Bench of this Court, having considered the observations of the learned single Judge of this Court made in the judgment first cited above Chennichi alias Parikkal, wife of Mariappa Goundar v. D.A.Srinivasan Chettiar, S/o.Arunachala Chettiar, 1970 (I) M.L.J. 234 has concluded that
“We agree with the above observations of Ismail, J. In the result, we do not find any warrant for interfering with the order of the executing Court directing delivery of possession to the respondent. The revision petition fails and is dismissed.”

With the above arguments advanced, the learned counsel for the respondent would conclude praying to dismiss the Civil Revision Petition with costs.

34. In clarification of certain ambiguities, the learned counsel for the revision petitioner would contend that the objection of the other side is that the application filed by the petitioner before the lower court is barred by constructive res judicata and would contend that as per Section 11 of the C.P.C., the point that whether the issue is heard and finally decided by the Court is to be given importance and that in the case in hand the judgment-debtor remained ex parte and therefore it is not open to the respondent to raise objection to the effect that the petitioner was estopped by constructive res judicata. The learned counsel for the petitioner would rely on a judgment delivered in Shivashankar Prasad Shah and others v. Baikunth Nath Singh and others, wherein it is held:

“Even the dismissal for default of objections raised under Section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution.”

35. The learned counsel for the petitioner would cite another judgment delivered in Kewal Singh v. Mt.Lajwanti, wherein it is held:

“… as regards the question of constructive res judicata it has no application whatsoever in the instant case. It is well settled that one of the essential conditions of res judicata is that there must be a formal adjudication

between the parties after full hearing. In other words, the matter must be finally decided between the parties. Here also at a time when the plaintiff relinquished her first cause of action the defendant was nowhere in the picture, and there being no adjudication between the parties the doctrine of res judicata does not
apply…..”

36. Making a mention of Section 21 of the C.P.C., the learned counsel for the petitioner would point out that Section 21(3) C.P.C. is an amendment of the year 1976 and sub-sections (1) and (2) of Section 21 refer to territorial and pecuniary jurisdictions relating to the suit; that so far as execution is concerned, the embargo is restricted only to territorial jurisdiction and does not extend to pecuniary jurisdiction; that under Section 39 of the C.P.C., the Court of competent jurisdiction both territorial and pecuniary could entertain the transferred decree for execution; that the objection is regarding the competence of the District Munsif in entertaining the Execution Petition regarding the pecuniary jurisdiction, but the learned District Munsif relied on the judgment reported in Koopilan Uneen ‘s Daughter Pathumma and others v. Koopilan Uneen’s son Kuntalan Kutty Dead by L.Rs. and others, cited by the other side which is a case of suit, which falls under Sections 21(1) and 21(2) but the case in hand is falling under Section 21(3).

37. For the objection raised by the respondent that the petitioner has not filed any document nor proved that he is the representative of the third defendant in the suit, the learned counsel for the petitioner would refer to the categorical admission made by the respondent not only in this petition but in the earlier E.A.361 of 1989 filed under Order 21 Rule 99 of the C.P.C. for redelivery of possession of the suit properties.

38. Admitting that the petitioner filed the earlier petition in E.A.No. 361 of 1989 for redelivery of the properties as third party, the learned counsel for the petitioner would Submit that in the said petition, the respondent filed a counter-affidavit contending that the petitioner is riot a third party but a representative of the third defendant in the suit. He would further contend that the property does not stand in the name of individual but has been purchased in the name of the institution; that on the admission of the respondent that the petitioner is the representative of the third defendant, it is Ex.A.1, which stands proof of the admitted fact. At this juncture, the learned counsel for the petitioner would cite two Judgments the first one delivered in Avadh Kishore Das v. Ram Gopal and others, and the second one delivered in Sitaramacharya (dead) through L.Rs. v. Gururajacharya (dead) through L.Rs., . In the first judgment cited above, it is held
“Evidentiary admissions are not conclusive proof of the facts admitted and
may be explained or shown to be wrong but they do raise an estoppel and shift
the burden of proof on to the person making them his representative-in-interest.

Unless shown or explained to be wrong, they are an efficacious proof of the
facts admitted.”

In the second judgment cited above, it is held:

“The appellate Court has not explained any of the circumstances much less compelling ones under which he came to make such an admission. Under Section 18 of the Evidence Act the admission made by the party would be relevant evidence. Section 31 provides that “admissions are not conclusive proof of the matters admitted but they may operate as estoppel under the provisions hereinafter contained”. In view of the admissions referred to earlier they appear to be unequivocal and the finding recorded by the appellate Court is cryptic. On the other hand, the trial Court has gone into the evidence on issues in extenso and considered the evidence and the appellate Court has not adverted to any of those valid and relevant considerations made by the trial Court. The High Court has dismissed the second appeal holding that they are findings of fact recorded by the appellate court on appreciation of evidence. We think that the view taken by the High Court is. not correct in law. The admissions in the written statement in the earlier proceedings, though not conclusive, in the absence of any reasonable and acceptable explanation, it is a telling evidence heavily loaded against the respondent.”

Citing the above propositions of law, the learned counsel for the petitioner would claim that till date, the respondent has not come forward to claim that the admission was on a mistake. Referring to the judgment reported in Jagat Kishore Prasad Narain Singh v. Surendra Kumar Bhadani and others, , the learned senior counsel for the petitioner would further contend that power to transfer the decree is derived at present under Section 39 of the C.P.C., which was earlier only the procedure. The learned senior counsel would clarify that prior to amendment of Order 21, Rule 5 of the C.P.C., the decree should be sent to another Court by the Court which passed it, for execution through the District Court concerned but subsequent to the amendment, the Court which passed the decree can send it to any Court direct for execution. Commenting on the judgments cited by the learned counsel for the respondents reported in (1) Smt.N.Pariyakkal and others v. The Cooperative Tourist and Transport Society Ltd. and another, (2) Patel Jayantilal Sendhidas v. Ambalal Maganlal Kothart, and (3) Ram Dayal and others v. Smt.Kisturi and others, , the learned counsel for the petitioner would contend that in the judgment first cited above wherein it is held that “the Court which does not lack inherent jurisdiction but has irregularly assumed jurisdiction, it is well settled that the proceedings are not vitiated”; that in the second judgment it is held that “the High Court is not bound to interfere in revision under Section 115 C.P.C. in all cases in which it is found that the Subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material illegality in the exercise of jurisdiction and in the third judgment it is held that “on notice served, judgment debtor raised no objection and the petition getting dismissed for non-prosecution and in a consequent execution application, he cannot raise objection of jurisdiction of Court” and would say that as the representative is bound by the decree, he has come under Section 47 of the C.P.C. Citing the already quoted judgment reported in Gangabai Gopaldas Mohata v. Fulchand and others, , the learned senior counsel would

say that even the transferor is a pendente lite. The learned senior counsel for the petitioner would end up his argument contending that the Division Bench judgment referred by the other side Smt.N.Pariyakkal and others v. The Cooperative Tourist and Transport Society Ltd. and another, was subsequent to the proceeding; that the petitioner filed the petition based on the decision of the executing Court challenging as nullity and without jurisdiction; that he is the representative of the third defendant and it is admitted by the other side and that he has also proved independently; that two items of the properties have been annexed subsequent to the suit; that he could very well maintain an application under Section 47 of the C.P.C.; that regarding jurisdiction, the executing Court is not competent to execute; that Section 21(3) C.P.C. does not put an embargo on his raising the objection and therefore unless the dispute is resolved, consequent failure of justice will be met with.

39. After the conclusion of the clarification, the learned senior counsel for the petitioner would submit two more judgments. The first one delivered in Rameshwar Dass Gupta v. State of U.P. and another, and would lay emphasis on the remarks to the effect that

“An executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21, C.P.C….”

“Though the High Court normally exercises its revisional jurisdiction-under Section 115, C.P.C. but once it is held that the executing Court has exceeded its jurisdiction, it is but the duty of the High court to correct the same

The second judgment is one delivered in State of Punjab and another v. Buta Singh, 1995 Supp. (3) SCC 684 wherein it is held:

“It is obvious that the executing Court had no jurisdiction to direct the recovery of any amount which was not granted by the decree under execution since the decree was for a mere declaration. The order of the executing Court being without jurisdiction, it was the duty of the High Court to have corrected that error of jurisdiction.”

40. Prior to assessing the merit of the case in hand, this Court is fully conscious of the position of law so far as Section 115 of the C.P.C., under which the revision petition has been filed and further the legal propositions arrived at by different High Courts and the Apex Court and regarding the exercise of power by this Court within the sphere and bounds of law relating to the facts and circumstances as pleaded and argued by both parties so as to arrive at a valid conclusion especially in view of the fact that many a legal question has been raised on both sides.

41. To sum up the facts, the entity viz Chennaivazh Nadargal Sangam T.V.A.Nallalaga Nadar School Managing Board, represented by its Manager A.G.Srinivasaga Nadar purchased the property totally measuring 8.14 acres in

Thandalkalani village of Saidapet Taluk under two registered sale deeds respectively dated 5.12.1975 and 28.9.1979 thus purchasing 5.16 acres as per the former and 2.98 acres as per the latter, both from one M.G.Devaraj of Old Washermanpet, Madras. The revision petitioner would contend that the said Sangam effected the purchase of the said lands with intent to establish a Polytechnic viz Sri Nallalagu Polytechnic and put up various buildings and structures and subsequently with the execution of a Trust Deed viz Kamaraj Education and Research Foundation Trust Deed, the administration of the Polytechnic came to be vested in the present petitioner and that on 1.3.1989, the respondent accompanied by. the Court Bailiff came to the premises of the Polytechnic and informing the Principal that they have come to take delivery of the property as per the decree passed in C.S.No.130 of 1979 and recording the delivery of possession, left the place.

42. The further case of the petitioner is that they filed E.A.No.361 of 1989 under Order 21 Rules 99 and 100 C.P.C. for redelivery. of the entire property covered under the Execution Petition in haste and on certain clarifications, under the impression that it would be more appropriate, they filed the present application under Section 47 of the C.P.C.; that the very Execution Petition is not maintainable under Section 39 of the C.P.C.; that the Court of District Munsif, Ponneri, which executed the E.P. in the manner aforementioned had no jurisdiction to execute since the High Court, Madras, which passed the decree had sent the decree for execution only to the Sub Court, Poonamallee, which in turn has chosen a wrong forum in having sent the same to the Court of District Munsif, Ponneri and hence the petitioner would submit that the Execution Proceedings are void ab-initio.

43. On the contrary, the case of the respondent is that he filed the suit in C.S.No.130 of 1979 on the file of the High Court, Madras for partition and separate possession along with A. No.892/79 for injunction against alienation, which was granted pending disposal of the suit; that the first defendant in the suit is his father and the third defendant is none/else than the petitioner herein and that they were served with suit summons on 30.8.1979; that they did not choose to appear, resulting in a preliminary decree having been passed on 4.1.1984 and filing another application to get him declared as the major and to relieve him from the guardianship of his mother, the same was allowed on 29.10.1987; that another application for appointment of a commission for the division of the suit scheduled properties and for allotment of his share as per the preliminary decree was also orderedon 21.12.1987 and the Commissioner, issuing notice to the third defendant twice, surveyed the land with the assistance of the Surveyor and the Village Administrative Officer, thus measuring the entire land contained in plaint ‘B’ and ‘D’ schedules and submitted his report on 29.3.1988 and on an application to pass a final decree in terms of the report of the Commissioner, the final, decree had been passed by the High Court.

44. The further case of the respondent is that the E.P.No.68 of 1988. filed in the High Court Madras for delivery of possession of his half share, as per the final decree, had been transferred to the Court of Subordinate Judge,

Poonamallee within the jurisdiction of which the property is located and the said Subordinate Judge, in turn having transferred the E.P. to the Court of District Mynsif, Ponneri, the same got renumbered as E.P.2 of 1989 and serving notice on all the respondents, particularly on the third defendant on 6.1.1989 the E.P. was allowed on 24.2.1989 resulting in the delivery of possession having been effected, on 1.3.1989; that after all these legal exercises were over, the petitioner filed E.A.No.361 of 1989 under Order 21 Rules 99 and 100 C.P.C. praying redelivery of the entire property covered under the Execution Proceeding and later filed the present application under Section 47 of the C.P.C. questioning the maintainability of the E.P. as ordered by the Court of District Munsif; that the first application was hit by the doctrine of lis pendense and the second one barred by res judicata; that the respondent having taken possession of the properties, the present application is further barred by the doctrine of constructive res judicata; that the petitioner having, admittedly, come out as a third party in the earlier proceeding, cannot now maintain the present application under Section 47 of the C.P.C.; that he cannot deviate the ends of justice, invoking Section 39 C.P.C.; that the petitioner has no right to agitate the correctness of the execution proceeding at this belated stage and would ultimately pray to dismiss the application.

45. During arguments, the learned counsel for the petitioner and the respondent dealing with the legal questions involved would advance their arguments citing various decisions. On the part of the learned counsel for the petitioner two judgments would be cited, the first one delivered by the Delhi High Court reported in Manganese Ore (India) Ltd., Nagpur v. M/s. Mangilal Rungta, Calcutta, A.I.R. 1981 Del. 114 wherein it is emphasised that ‘the transferee Court must have both territorial and pecuniary jurisdiction’. The second judgment cited: by the learned counsel for the petitioner is one delivered by the Patna High Court reported in Jagat Kishore Prasad Narain Singh v. Surendra Kumar Bhadani and others, wherein it is held that ‘the transferor Court must follow Or.21. Rules 5 and 8. But failure to observe the same amounts to a mere irregularity and does not affect the jurisdiction of the Court to which the decree is transferred for execution. The next area surveyed by the learned counsel for the petitioner is that of the res judicata, since Section 11 of the C.P.C. was the focal point of the arguments of the learned counsel for, the respondent. The learned counsel would cite two judgments for res judicata and one for constructive res judicata. The first one being a judgment of the Apex Court reported in Ameena Amma (dead) through L.Rs. and others v. Sundaram Piliai and others, wherein it is held that “the principle of res judicata is that the order passed earlier must be between the same parties and it should have been heard and decided by such Court’. The second judgment cited by the learned counsel for the petitioner is one reported in Shivashankar Prasad Shah and others v. Baikunth Nath Singh and others, wherein it is held that ‘even the dismissal for default of objections raised under Section 47 of the C.P.C. does not operate res judicata when they were raised again during execution’. The third judgment is also one delivered by the Apex Court reported in Kewal Singh v. Mt.Lajwanti, wherein it is held that ‘the matter must be finally decided between the parties,

else the question of constructive res judicata has no application’. For lis pendense. also the learned counsel for the appellant would cite a judgment of the Apex Court reported in Gangabai Gopaldas Mohata v. Fulchand and others, wherein it is held that ‘if the claim of the representative is disputed by the other party, it must be resolved by the executing Court itself. The word ‘representative’ used in Section 47 is obviously much wider than the words ‘legal representative’ as used in Section 50 of the Code’. The other judgment is also one supporting the case of the petitioner delivered by ‘the Apex Court reported in Avadh Kishore Das v. Ram Gopal and others, wherein it is held ‘evidentiary admissions are not conclusive proof of the facts admitted.’ The other judgment cited by the learned counsel for the petitioner is one reported in Sitaramacharya (dead) through L.Rs. v. Gururajacharya (dead) through L.Rs., wherein also it is held that ‘evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong but they do, raise an estoppel and shift the burden of proof to the person making them or his representative-in-interest’.

46. On the part of the learned counsel for the respondent, he too would cite a number of decided cases for various points. The first one being for notice reported in K.Mariappan and five others v. Chennaivazh Nadargal Sangam and three others, wherein it is held ‘when the other side suffered a decree, they cannot say that they have not been given notice.’ The other decision which has been cited by the learned counsel for the respondent is one delivered by the Apex Court reported in Koopilan Uneen’s Daughter Pathumma and others v. Koopilan Vneen’s Son Kuntalan Kutty (Dead) by L.Rs. and others, wherein it is held ‘the provisions of sub-section (1) of Section 21 C.P.C. made it imperative for the District Court and the High Court not to entertain the objection whether or not it was otherwise well founded.’ The next judgment is in emphasise of the powers of the High Court under Section 115 of the C.P.C. reported in Patel Jayantilal Sendhidas v. Ambalal Maganlal Kothari, . The second judgment regarding the same proposition is one reported in Chennichi alias Parikkal, Wife of Mariappa Goundar v. D.A.Srinivasan Chettiar, S/o.arunachala Chettiar, 1970 (I) M.L.J. 234. The next judgment cited by the learned counsel for the respondent is regarding constructive res judicata reported in Smt.Pushpa v. Ganpatsingh and others, wherein it is held that ‘when the judgment debtor having not taken objection, at the earliest in his first objection petition, he is precluded from taking such objection on the principles of constructive res judicata’. For pecuniary jurisdiction, the learned counsel for the respondent would cite a judgment of the Punjab and Haryana High Court reported in Narain Kumar v. Neki Ram and others, wherein it is held that ‘objection regarding lack of pecuniary jurisdiction cannot be raised in E.P. by the petitioner in the absence of any prejudice on merits.’ The other judgment cited for pecuniary jurisdiction is one reported in Smt.N.Pariyakkal and others v. The Cooperative Tourist and Transport Society Ltd. and another, wherein it is held that ‘where a Court does not lack inherent jurisdiction, but has irregularly assumed jurisdiction, the proceedings

before it are not vitiated.’ The next judgment is one reported in Gosto Behari Pramanik v. Smt.Malati Sen and others, wherein it is held that ‘want of territorial or pecuniary jurisdiction is an irregularlity and does not make a decree a nullity’. The other judgment cited by the learned counsel for the respondent is one reported in Ram Dayal and others v. Smt.Kisturi and others, wherein it is held that ‘since the judgment debtors did not raise the question of jurisdiction at the first instance, it is not open to them to raise it in the second E.P.’ For non-routing of the decree through the District Court, the learned counsel would cite two judgments the first one by the Andhra Pradesh High Court reported in Marriddi Janikamma and others v. Hanumantha Vajjula Paradesi Sarma and others, A.I.R. 1980 AP 209 and the second one delivered by the Patna High Court reported in Maharaj Kishore Khanna v. Raja Ram Singh and another, A.I.R. 1954 Pat. 164. In the former judgment it has been held that ‘non-routing of the decree through the District Court to the executing Court is only an irregularity and not an illegality. Even otherwise, if objection to the decree is not taken in the first instance, it must be deemed to have been waived and cannot be raised at a later stage. In the latter decision, it has been held that the jurisdiction to transfer a decree for execution from one Court to another arises not under Order 21 Rule 5 but under Section 39 Civil P.C. Order 21 Rules 5 and 8 merely prescribe the procedure by which the transfer is to be carried out. It is clear that failure to observe the provisions of Order 21 Rule 5 or Rule 8 is a mere irregularity and does not affect the jurisdiction of the Subordinate Judge of Purnea to execute the decree.’ Yet another judgment cited by the learned counsel on the pecuniary jurisdiction of the Court is one reported in Firm Shivalomal Gopaldas v. Firm Bholashah Lakshmichand, A.I.R. 1946 Sin. 103 wherein it is held that ‘it was not necessary that a Court to which a decree was transferred for execution should be a Court having the same pecuniary jurisdiction.”

47. With the above facts and circumstances pleaded and the arguments heard on both sides and in consideration of the decided cases cited, the following points arise for determination. They are:

1. Whether the petition is barred under Section 11 of the C.P.C. and not maintainable in law in view of the earlier petition filed under Order 21 Rules 99 and 100 C.P.C.?

2. Whether the petitioner could maintain the present petition as the repre-sentative of the third defendant to the suit?

3. Whether the application is hit by lis pendense.?

4. Whether the lower Court is not competent to execute the decree for want of monetary jurisdiction?

Point No.1:-

48. Regarding this point, the respondent woald strongly contend that the petitioner had already filed a petition under Order 21, Rules 99 and 100 C.P.C. seeking redelivery of the properties and on coming to know that he could not

withstand the contention raised by the respondent regarding transferee pendents lite, now shifting the stance, the petitioner has come forward to file the present application under Section 47 of the C.P.C. questioning the jurisdiction of the Court and the petitioner having admitted that he was a third party to the proceeding, as per the written submission in the earlier petition, cannot maintain this application under Section 47 of the C.P.C. With this strong contention, the respondent would put up the plea of res judicata as defined under Section 11 of the C.P.C. Citing the judgment reported in Smt.Pushpa v. Ganpatsingh and others, , the respondent would contend that the judgment debtor having not taken the objection at the earliest, in his first petition, he is precluded from taking such objection on the principles of constructive res judicata.

49. On the part of the petitioner, it would be contended that in the present case, the principles of res judicata cannot be applied. Citing the judgment reported in Ameena Amma (dead) through L.Rs. and others v. Sundaram Pillai and others, the learned counsel for the petitioner would argue that the order passed earlier must be between the same parties and the same should have been heard and decided by such Court. Citing another judgment reported in Shivashankar Prasad Shah and others v. Bailcunth Nath Singh and others, , the learned counsel for the petitioner would point out that ‘even the dismissal for default of objections raised under Section 47 C.P.C. does not operate as res judicata when they were raised again during execution. Dealing with the constructive res judicata on the part of the respondent, such argument would be countered by the petitioner citing the judgment reported in Kewal Singh v. Mt.Lajwanti, wherein it is held that ‘the matter must be finally decided between the parties, else, the question of constructive, res judicata has no application.’

50. On facts, it is the admitted case of the petitioner that earlier an application under Order 21 Rules 99 and 100 C.P.C. was filed by the petitioner before the lower Court seeking redelivery of the properties mentioned in the petition and after clarification in the context of certain documents, they thought it would be more appropriate to file an application under Section 47 of the C.P.C., as a result of which, the earlier application was withdrawn by the petitioner and the present application under Section 47 of the C.P.C. was filed thereafter and it is not a case falling under Section 11 of the C.P.C. since it is not the issue which was directly and substantially, in issue in the former proceeding between the same parties and was heard and finally decided by the Court. It would be clarified by the petitioner that the earlier application filed by him was as a third party to the E.P, proceeding but the present application has been filed in its capacity as the representative of the third defendant in the suit and hence the matter cannot be said to be between the same parties nor was the earlier application heard and finally decided but it was only withdrawn and hence Section 11 of the C.P.C. has no application to the case in hand and the present application is not at all barred Under Section 11 of the C.P.C. nor hit by the principles of constructive res judicata. It is not the case of the respondent that in the earlier application either parties were heard or any

argument advanced or any order passed deciding the issues raised in the earlier application finally, but only a general argument would be advanced on the part of the respondent to the effect that the earlier application, filed by the petitioner would not give way for another application to be filed under Section 47 of the C.P.C, and hence it is hit by Section 11 of the C.P.C.

51. Having regard to the letter and spirit of the Section and the legal
propositions arrived at by the upper forums of law, since the ingredients of
Section 11 C.P.C. are not satisfied and further having regard to the fact that
the earlier application filed under Order 21 Rules 99 and 100 CPC had only
been withdrawn, the issues raised therein without being finally heard and
decided, it cannot in any manner be concluded that the present application
filed under Section 47 of the C.P.C. by the petitioner would be barred by
Section 11 of the C.P.C. Hence for this point, it is hereby answered that the
present application filed by the petitioner is not barred either by res judicata
or by constructive res judicata, thus deciding this point in favour of the
petitioner.

Point No.2:-

52. Prior to assessing this point, it is, relevant to consider Seclion 47 of C.P.C. under which the very petition has been filed before the lower Court by the petitioner, with which, this Civil Revision Petition is concerned:

“47. Questions to be determined by the Court executing decree:

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) Omitted by Amendment Act, 1976.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Seclion, be determined by the Court.”

The other legal provision falls for consideration is Order 21, Rules 99 and 100
C.P.C. Hence, I extract them as under:

“Order XXI, Rule 99: Dispossession by decree-holder or purchaser.-

(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such properly has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.

(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

HIGH COURT AMENDMENT (MADRAS): For the words (other than the Judgment-debtor in brackets substitute the words “other than those mentioned in Rule 98.”

“Order XXI Rule 100:- Order to be passed upon application complaining of dispossession:

Upon the determination of the questions referred to in Rule 101, the Court
shall, in accordance with such determination —

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as in the circumstances of the case, it may deem fit.”

53. A simple dissection of the above provisions of law would indicate that under Order 21 Rule 99, an application could be filed by anyone other than the judgment debtor, who is disposed of any immovable property by the holder of the decree for the possession of such property and in such event if an application is made by the said person, the Court shall adjudicate upon it. So far as Order 21 Rule 100 is concerned, it would contemplate that on all such questions referred to in Rule 101 C.P.C., the Court shall make an order either allowing the application or directing the applicant to be put in possession of the property or even dismissing the same as it is required in the circumstances of the case.

54. But an application under Section 47(1) C.P.C., unlike by a third party as contemplated under Order 21 Rule 99, could be made only by the parties to the suit or their representative connecting the decree passed or relating to the execution, discharge or satisfaction of the decree and it shall be determined by the Court executing the decree. Section 47(3) would contemplate that the question whether any person is a representative of a party or not shall be determined by the Court. Apart from these, explanations 1 and 2 would further contemplate who are all the right parties to the suit or proceeding.

55. From the above, it could be ascertained that an application under Order 21 Rule 99 could be filed only by a person other than a judgment debtor. The earlier petition in E.A.361 of 1989 had been filed by the present petitioner as a third party and the same petitioner has now filed this petition under Section 47 of the C.P.C. which could be filed only between the parties to the suit or execution proceeding, calling himself the representative of the third defendant to the suit. Needless to point out that the petitioner has had a somersault having taken a quite contradictory stand. The only reason assigned on the part of the petitioner for shifting of his stance in the aforesaid manner is that on the part of the petitioner it was thought more appropriate to file an application under Section 47 C.P.C. rather than to prosecute the earlier application filed under Order 21, Rules 99 and 100 C.P.C. This reason assigned on the part of the petitioner does not commensurate the contradictory stand taken on the part of the petitioner, having already taken a stand as a third party and unconnected person to the whole of the suit proceeding and that of the execution proceeding and withdrawing the same, filing the present application under Section 47 of the C.P.C. posing to be the representative of the third defendant in the suit is not that much a simple affair as it is termed on the part of the petitioner that since he thought it more appropriate to proceed under Section 47 than to prosecute the earlier petition filed under Order 21, Rules 99 and 100 C.P.C. Absolutely there cannot be any nexus or proximity between these two provisions of law, which stand apart as opposite poles quite opposed to each other. A person calling himself to be entitled to file an application in a suit or proceeding under Order 21, Rules 99 and 100 C.P.C. cannot in any manner even imagine to go near Section 47 C.P.C. since it is confined to the different set of persons, who are necessarily to be parties to the proceedings and hence from the contradictory stand taken on the part of the petitioner itself, it could be presumed that the petitioner has not come to the Court either with clean hand or for proper remedy. Moreover the Civil Suit in this regard had been filed as early as on 28.2.1979 and from out of the whole properties forming the suit parties, certain extent had been purchased on 5.12.1975 and the other after filing of the suit one in March, 1979 and the other in September, 1979. Hence, it would be argued on the part of the respondent that pertaining to that portion of the suit properties which are purchased after filing of the suit, it is hit by lis pendense.

56. Be that as it may. Now, the main point for consideration being whether the petitioner could maintain the present petition as the representative of the third defendant to the suit and the third defendant to the suit being a party right from the very inception of the suit on 28.2.1979 for ten years, he does not seem to have taken any interest in genuinely prosecuting the case and only after the delivery of possession having been effected in favour of the respondent as on 1.3.1989 i.e. exactly after 10 years of filing of the suit, the petitioner had awoken from its long slumber and in the name of the representative of the third defendant to the suit, has come forward to file this petition that too having filed a different application under Order 21 Rules 99 and 100 C.P.C. and withdrawing the same for reasons best known to itself. Though the earlier application filed in E.A.361 of 1989 had been withdrawn prior to passing any order after due hearing, though it cannot be said to be barred under Section 11 of the C.P.C. by application of the principle of res judicata, still one thing that cannot be denied on the part of the petitioner himself that has been revealed firmly from the earlier application is that physical possession had been taken by the respondent. Hence, seeking redelivery, the earlier application had been made which fact cannot so easily be denied by the petitioner himself and as though the possession taken by the respondent herein as per the delivery of possession recorded under Ex, C.3 is a proper possession and that possession is still in the hands of the petitioner, now the petitioner has come forward to project a totally different case which is unbelievable and the petitioner is also estopped from denying the earlier stand taken on his part accepting the delivery of possession including physical possession and seeking on his part redelivery of possession of the properties in the earlier application. Moreover, the petitioner is not at all questioning the very decree passed much less on ground that it had been passed without his knowledge or without opportunity but only the manner in which the decree had been executed i.e. the mode of execution. Exs.C.1 to C.3 marked through C.W.1, especially from that of Ex. C.3, it is quite evident that delivery of possession had been effected and handed over in favour of the respondent by the Court Amin in the presence of witnesses and in delivery of possession,
there cannot be anything more than what has been recorded in Ex.C.3 and it has to be relied upon and accepted by all.

57. Coming to the stand of the petitioner that he is the representative of the third defendant even at the time the earlier petition E.A.361 of 1989 had been filed by the petitioner, the position of the third defendant and that of the petitioner did not change. The same petitioner in the name of a third party and without showing any nexus to the third defendant had filed the petition. However, the petitioner would come forward to say that the management then and now are different and by the execution of Kamarajar Education Research Foundation Trust Deed, the administration of the Polytechnic came to be vested in the present Trust Board and the petitioner carry on with the administration of the said polytechnic as on today including the properties. Neither the position of the present administration nor the representative character of the petitioner to that of the third defendant having come to be established, even for argument’s sake taking for granted that those facts have been established, the commitments of the third defendant cannot be, forsaken by the petitioner and the third defendant having miserably failed in the suit and other proceedings and the petitioner having stepped into the shoes of the third defendant, it is not for the petitioner now in the name of the third defendant’s representative that too at this belated stage to raise such questions since the representative of the third defendant cannot acquire a noval right more than what the third defendant himself did have and if at all the petitioner as the representative of the third defendant could claim what rights had enjoined the third defendant and commitments made by it. For all the above discussions held, the only conclusion that could be arrived at so far as this point is concerned is that the petitioner cannot maintain the present petition as it had been filed before the lower Court under Section 47 of the C.P.C, and this point is answered against the petitioner and in favour of respondent.

Points No.3 and 4:

58. In view of the decision arrived at for Point No. 2 to the effect that
the revision petitioner cannot maintain the present petition as it had been filed
before the lower Court under Section 47 of the C.P.C., there is no need or
necessity to go into the question pertaining to Points No.3 and 4, which are
unwarranted.

In result, the above Civil Revision Petition fails and the same is dismissed. The fair and decretal order dated 18.8.1994 made in E. A. No. 999 of 1989 in E.P.No.2 of 1989 by the Court of District Munsif, Ponneri is hereby upheld and confirmed. However, in the circumstances of the case, there shall be no order as to costs.