IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 2- 3- 2011
CORAM
The Hon'ble Mr.Justice R.S.Ramanathan
C.M.S.A.No.8 of 2009
and
M.P.No.1 of 2009
C.R.P.NPD.No.1953 of 2009
and
M.P.Nos.1 and 2 of 2009
1.Thiru.Jagadeesan ... First Appellant in C.M.S.A.No.8 of 2009
and
... Revision Petitioner in C.R.P.NPD.No.1953 of 2009
2.George ... Second Appellant in C.M.S.A.No.8 of 2009
Vs.
Thiru.N.Subramani ... Respondent in both C.M.S.A. and C.R.P.NPD.
Prayer in C.M.S.A.No.8 of 2009 :
Civil Miscellaneous Second Appeal filed under Order 21, Rule 103 r/w Section 100 of Civil Procedure Code as against the judgment and decree dated 24.10.2008, passed in C.M.A.No.24 of 2008 on the file of the Subordinate Judge, Tiruvallur, in reversing the judgment and decree dated 20.02.2008, passed in E.A.No.605 of 2004 in E.P.No.50 of 2003 in O.S.No.546 of 1994 on the file of the District Munsif Court, Tiruvallur.
Prayer in C.R.P.NPD.No.1953 of 2009:
Civil Revision Petition filed under Section 115 of Civil Procedure Code as against the fair and decreetal order dated 18.10.2005, passed in I.A.No.119 of 2004 in unnumbered A.S. of 2004, on the file of the Subordinate Court, Tiruvallur.
For Appellant/Petitioner : Mr.P.Srinivasan For Respondent in C.M.S.A.No.8 of 2009 : Mr.M.S.Subramanian For Respondent in C.R.P.NPD.No.1953 of 2009 : Mr.N.K.Sivakumar COMMON ORDER The first defendant in O.S.No.546 of 1994, and the obstructor are the appellants herein.
2. The respondent filed the above suit against the first appellant and Sub Registrar, Tiruvallur, for mandatory injunction directing the first appellant to handover vacant possession of plaint ‘A’ schedule property and for permanent injunction, restraining the Sub Registrar/ Tiruvallur, the second appellant from registering the plaint ‘B’ property in favour of any third party. That suit was decreed on 13.12.2002.
3. Thereafter, the respondent-decree holder filed execution petition in E.P.No.50 of 2003, to execute the decree and at that time, the second appellant caused obstruction in executing the decree and claimed title over the suit property. Therefore, the respondent-decree holder filed E.A.No.605 of 2004, under Order 21, Rule 97 of C.P.C., to remove the obstructor viz., the second appellant and that application in E.P.No.605 of 2004, was dismissed and consequently E.P.No.50 of 2003, was also dismissed. Aggrieved by the same, the respondent-decree holder filed an appeal in C.M.A.No.24 of 2008, against the dismissal of E.A.No.605 of 2004 and that appeal was allowed and against the same, this C.M.S.A. was filed by the appellants.
4. It is contented by Mr.P.Srinivasan, the learned counsel appearing for the appellants that the respondent-decree holder has no right to the suit property and even according to the respondent-decree holder, the property originally belonged to one Terasa and the said Terasa was the owner of 4 cents of land and under Ex.R1, viz., the sale deed dated 17.11.1976, she sold 2 > cents of land, out of the total extent of 4 cents situate in S.No.509B/10B to the appellants and therefore, she was having remaining extent of 1 cents of land, out of 4 cents of the property under a sale deed dated 27.1.1977 from Terasa and after the sale of 2 > cents in favour of the first appellant, the said Terasa, cannot give a valid title in respect of 3 > cents, as she was the owner of only 1 cents of land situate in S.No.509B/10B, from Terasa, under the document dated 27.01.1977 and the purchaser Dakshayini, sold the same under a Registered sale deed dated 19.04.1995 in favour of one Devi and from the said Devi, the respondent/plaintiff purchased the property under the Registered sale deed dated 30.07.1987 and having regard to the earlier sale deed executed by Terasa, in favour of the first appellant, the respondent/plaintiff cannot claim title to the suit property.
5. Mr.P.Srinivasan, the learned counsel appearing for the appellants submitted that though the suit was decreed ex parte an application to set aside the ex parte decree was filed along with an application to condone the delay and that was dismissed and the same was also confirmed in
Revision Petition filed before this Court. Thereafter, the first appellant filed an appeal against the ex parte decree along with an application in I.A.No.119 of 2004, to condone the delay and in that application, as per the consent given by the respondent’s Counsel, the delay was condoned on payment of costs and the cost was also deposited into the Court.
6. Thereafter, the Court below, suo motu re-opened the application filed in I.A.No.119 of 2004, by the first appellant to condone the delay in filing the appeal and dismissed the same and against the same, the first appellant filed a revision petition in C.R.P.NPD.No.1953 of 2009 before this Court and therefore, the Court below erred in suo motu re-opening the application filed in I.A.No.119 of 2004, after the same was allowed and the delay was condoned. When the appeal filed against the ex parte decree passed in O.S.No.546 of 1994, the Court below ought not to have allowed the application filed by the respondent and ordered for removal of the obstruction caused by the second respondent.
7. Mr.P.Srinivasan, the learned counsel appearing for the appellant submitted that the term ” any person” stated under Order 21, Rule 97 of C.P.C., includes a purchaser, who purchased the property from the judgment-debtor and therefore, the second appellant is entitled to maintain the obstruction and relied upon the judgments reported in A.I.R. (2004) SC 511 in the case of ( Ashan Devi and another Vs. Phulwasi Devi), A.I.R. (2002) S.C. 251 in the case of ( N.S.S.Narayana Sarma and others Vs. M.S.Goldstone Exports (P) Ltd., and others ) and also A.I.R. (2008) SC 225 in the case of ( Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd., and others).
8. The learned counsel appearing for the appellants therefore contended that the second appellant was not a party to the suit and as per the judgment reported in A.I.R. (2008) SC 225 (supra), a person, who was not a party to the suit is not bound by the decree and therefore, he is entitled to challenge the decree by raising obstruction and that was not properly appreciated by the Court below.
9. The learned counsel appearing for the appellants further submitted that after the Court below allowed the application filed by the first appellant to condone the delay in filing the appeal, the Court below ought not to have re-opened the matter and erred in dismissing the application and hence, the order of the Court below in dismissing the application filed in I.A.No.119 of 2004 under Section 5 of Limitation Act is also erroneous and the Revision Petition has to be allowed.
10. On the other hand, Mr.M.S.Subramanian, the learned counsel appearing for the respondent submitted that the appellants have no right to raise any obstruction in executing the decree. According to him, the first appellant was the judgment-debtor and he is bound by the decree and therefore, he cannot maintain the appeal and the second appellant was the purchaser of the suit property from the first appellant during the pendency of the suit, and therefore, he is also bound by the decree. Hence, the appellants cannot raise any obstruction to the execution of the decree.
11. The learned counsel appearing for the respondent also relied upon the judgments reported in (1998) 3 S.C.C. 723 in the case of (Silverline Forum Pvt. Ltd., Vs. Rajiv Trust and another), ( 2008) I L.W. 1065 in the case of ( S.Rajan Vs. A.Suriyanarayanan and five others ) and ( 2008) 7 S.C.C 144 in the case of ( Usha Sinha Vs. Dina Ram and others) in support of his contention. It is his further submission that the second appellant being a transferee/pendente lite from the judgment-debtor, is presumed to be aware of the proceedings and therefore, he is not entitled to cause any obstruction and Order 21, Rule 102 of C.P.C., provides a specific bar for such a person to raise obstruction. Therefore, the appellants are not entitled to raise any obstruction to the execution of the decree passed in O.S.No.546 of 1994.
12. The learned counsel appearing for the respondent also submitted that no doubt, the application in I.A.No.119 of 2004, was allowed on the basis of the consent given by the Junior Counsel appearing for the respondent-decree holder before the Court below and that was properly appreciated by the Court below and by mistake, the Junior Counsel has submitted no objection in allowing the said application. Immediately, on coming to know of the same, a memo was filed by the Counsel appearing for the respondent-decree holder in I.A.No.119 of 2004, and on the basis of the memo filed by the Counsel appearing for the respondent-decree holder, the Court below, suo motu, re-opened the matter and passed the final order, dismissing the application to condone the delay on merits.
13. The learned counsel appearing for the respondent lastly submitted that the respondent-decree holder has fought the application filed by the first appellant to condone the delay in filing the application to set aside the ex parte and due to the objection raised by the respondent-decree-holder, the delay was not condoned and the same was also confirmed in the Revision. Therefore, the respondent-decree holder would not have given consent for allowing the application to condone the delay in filing the appeal and the Junior Counsel without realizing the stake involved, without getting proper instructions and by mistake submitted that the respondent-decree holder is willing to receive cost for allowing the application and that mistake was later rectified by filing a memo. The Court below considered all these aspects and rightly dismissed the application holding that no proper and sufficient explanation was given by the first appellant in condoning the delay.
14. Heard the learned counsel on either side.
15. The main contention of Mr.P.Srinivasan, the learned counsel appearing for the appellants was that the decree holder’s vendor viz., Terasa, was the owner of four cents of land and before the sale was executed in favour of the respondent-decree holder in the year 1977, she has sold 2 > cents of land in the said survey number under Ex.R1, in the year 1976 in favour of the first appellant. Therefore, the said Terasa, was having only 1 cents to the respondent-decree holder’s vendor’s vendor.
16. The learned counsel appearing for the appellants therefore contended that the respondent-decree holder was the owner of 1 cents and on that basis, he cannot maintain the suit and the second appellant being the third party to the decree, is entitled to question the title of the respondent-decree-holder in a proceedings taken under Order 21, Rule 97 of C.P.C.
17. No doubt, it is true that as per Ex.R1, the said Terasa, sold an extent of 2 > cents situate in S.No.509B/10B out of the total extent of 54 cents of land. In Ex.R1, the boundaries were not mentioned and only an extent of 2 > cents, out of 4 cents was stated to be sold by Teresa. It is also not known whether Teresa, was the owner of 54 cents or any lesser extent. However, under the sale deed dated 27.01.1977, the said Teresa, sold 3 > cents out of four cents situate in the said survey numnber, in favour of Dakshayini and the same was sold by Dakshayini to Devi and from Devi, the respondent-decree holder purchased the property. Before the Court below the appellants have not filed the sale deeds executed in favour of the respondent-decree holder or his purchaser in title and only during the Second Appeal stage, those documents were produced before this Court.
18. However, having regard to the recitals mentioned under Ex.R1, and the recitals in the sale deeds executed in favour of the respondent-decree holder and his predecessor in title it cannot be concluded that the said Teresa, was the owner of only four cents and after having sold 2 > cents to the first appellant, she had only 1 cents out of 54 cents in S.No.509B/10B. Therefore, first submission of the learned counsel appearing for the appellants that the respondent/plaintiff cannot claim title in respect of 3 > cents in the suit survey number cannot be accepted.
19. Admittedly, the suit filed by the respondent/plaintiff was decreed on 13.12.2002. On 26.10.1994, the first appellant entered into an agreement of sale with the second appellant for selling the property measuring an extent of 2 > cents and on 23.02.1998, the first appellant and his son executed a general Power of Attorney in favour of the second appellant for sale of the suit property and by virtue of that Power, the second appellant purchased the property under a registered sale deed dated 09.05.2005. In the agreement of sale, the power document and in the sale deed executed in favour of the second appellant, it was clearly mentioned that the property which was sold to the second appellant was of an extent of 2 > cents out of the total extent of 54 cents. Therefore, from these documents also it can be concluded that the said Teresa, was not the owner of only 4 cents of property and she was the owner of more than 4 cents and hence, the respondent-decree holder got a valid title to the suit property.
20. Admittedly, the second appellant purchased the suit property from the judgment-debtor viz., the first appellant, after the decree was passed in O.S.No.546 of 1994. Therefore, he is the purchaser of the property, after the suit was filed and decree was passed and hence, he is
also bound by the decree. No doubt in the judgment reported in (1998) 3 S.C.C 723 (supra) it has been held by the Hon’ble Supreme Court that the term ‘any person’ in Rule 97 (1) of C.P.C., includes the third party to the decree including the transferee pendente lite and he is entitled to offer resistance or obstruction.
21. Nevertheless, the Hon’ble Supreme Court has also held that if the resistance was made by the transferee pendente lite of the judgment-debtor, the scope of adjudication would be shrunken to the limited question whether he is such a transferree and on a finding in the affirmative regarding that point, the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act. Similar principle was reiterated in the judgment reported in (2008) 7 S.C.C. 144 ( supra) and I also had occasion to deal with such claim in C.M.S.A.No.11 of 2010 and relied upon the judgment reported in (2008) 7 S.C.C. 144 ( supra) and I also held that a tranferee pendente lite cannot obstruct the execution of the decree and he is bound by the decree passed in respect of the judgment-debtor.
22. Though the other judgments relied upon by the learned counsel for the appellants holds that the second appellant being the third party is entitled to raise obstruction to the execution of the decree, having regard to the judgments referred to supra and the fact that the second appellant being a transferree pendente lite is bound by the decree passed and Order 21, Rule 102 of C.P.C., provides a specific bar for such a person, to cause obstruction to the execution of the decree, when the first appellant being the judgment-debtor is bound by the said decree. Hence, the Court below has rightly allowed the appeal and directed the obstruction to be removed. Therefore, I do not find any reason to interfere with the order of the Lower Appellate Court, passed in respect of C.M.A.No.24 of 2008, which is the subject matter of C.M.S.A.No.8 of 2009 and the same is dismissed accordingly.
23. As regards the petition filed in C.R.P.NPD.No.1953 of 2009 as against the dismissal of the application filed in I.ANo.119 of 2004, in unnumbered first appeal, the Court below as stated a valid reason for re-opening the case by suo motu and dismissed the application filed by the revision petitioner to condone the delay. As rightly submitted by the learned counsel for the respondent-decree holder, the revision petitioner was aware of the decree being passed against him in O.S.No.546 of 1994 in the year 2002 and only after two years, the appeal was filed to set aside the ex parte decree along with the application to condone the delay and that application to condone the delay was dismissed and the same was confirmed in Revision Petition. Even thereafter, the revision petitioner has not chosen to file the appeal against the ex parte decree passed and he filed the appeal leisurely after a delay of more than 200 days and filed application in I.A.No.119 of 2004, to condone the delay and in that application no acceptable reason has been stated.
24. No doubt, I.A.No.119 of 2004, was allowed on terms on the basis of the consent given by the Junior Counsel appearing for the respondent-decree holder and the consent given by the Junior counsel for the respondent-decree holder was a mistaken one and it is stated in the order that the consent was given by the Junior Counsel. Immediately, on coming
to know of the same, a memo was filed by the Counsel appearing for the respondent-decree holder for withdrawing the consent given by the Junior Counsel and on considering the averments made in the memo, the Court below rightly heard the application in I.A.No.119 of 2004, on merits after affording opportunity to the parties and dismissed the same.
25. Hence, I do not find any reason to interfere with the reasoned order passed by the Court below and therefore, the petition in C.R.P.NPD.No.1953 of 2009, is also dismissed. No costs. Consequently, connected Miscellaneous Petitions in Civil Miscellaneous Second Appeal and Civil Revision Petition is also dismissed.
sd
To
1.The Subordinate Judge,
Tiruvallur.
2.The District Munsif,
Tiruvallur