{"id":23683,"date":"2011-03-02T00:00:00","date_gmt":"2011-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thiru-jagadeesan-first-vs-thiru-n-subramani-on-2-march-2011"},"modified":"2016-01-22T14:40:55","modified_gmt":"2016-01-22T09:10:55","slug":"thiru-jagadeesan-first-vs-thiru-n-subramani-on-2-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thiru-jagadeesan-first-vs-thiru-n-subramani-on-2-march-2011","title":{"rendered":"Thiru.Jagadeesan … First vs Thiru.N.Subramani on 2 March, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Thiru.Jagadeesan … First vs Thiru.N.Subramani on 2 March, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated :   2- 3- 2011\n\nCORAM\n\nThe Hon'ble Mr.Justice R.S.Ramanathan\n\nC.M.S.A.No.8 of 2009\nand\nM.P.No.1 of 2009\nC.R.P.NPD.No.1953 of 2009\nand\nM.P.Nos.1 and 2 of 2009\n \n1.Thiru.Jagadeesan\t\t...  First Appellant in C.M.S.A.No.8  of 2009\n                                     and\n\t\t\t\t... Revision Petitioner in C.R.P.NPD.No.1953 of 2009\n\n2.George \t\t\t... Second Appellant in C.M.S.A.No.8  of 2009\n\nVs.\n\nThiru.N.Subramani\t\t... Respondent in both C.M.S.A. and C.R.P.NPD.<\/pre>\n
Prayer in  C.M.S.A.No.8  of 2009 :\n<\/p>\n
\tCivil 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.\n<\/p>\n
Prayer in C.R.P.NPD.No.1953 of 2009:\n<\/p>\n
\tCivil 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.\n<\/p>\n
\tFor Appellant\/Petitioner\t  \t\t: Mr.P.Srinivasan\n\n\tFor Respondent in\n\t       C.M.S.A.No.8  of 2009\t\t: Mr.M.S.Subramanian\n\n\tFor Respondent in\n\t       C.R.P.NPD.No.1953 of 2009 \t: Mr.N.K.Sivakumar\n\n\t\t\t\t\tCOMMON ORDER\t\n\tThe first defendant in O.S.No.546 of 1994, and the obstructor are the appellants herein. \n \n<\/pre>\n
\t2. 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.\n<\/p>\n
\t3. 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.\n<\/p>\n
\t4. 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.\n<\/p>\n
\t5. 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  <\/p>\n
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.\n<\/p>\n
\t6.  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.\n<\/p>\n
\t7.  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).\n<\/p>\n
\t8. 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.\n<\/p>\n
\t9.  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.\n<\/p>\n
\t10. 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.\n<\/p>\n
\t11.  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.\n<\/p>\n
\t12.  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.\n<\/p>\n
\t13.   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.\n<\/p>\n
 \t14. Heard the learned counsel on either side.\n<\/p>\n
\t15. 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.\n<\/p>\n
\t16.  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.\n<\/p>\n
\t17. 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.\n<\/p>\n
\t18. 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.\n<\/p>\n
\t19. 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.\n<\/p>\n
\t20.  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 <\/p>\n
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.\n<\/p>\n
\t21.  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.\n<\/p>\n
\t22. 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.\n<\/p>\n
\t23. 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.\n<\/p>\n
\t24. 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
\nto 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.\n<\/p>\n
\t25. 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.\n<\/p>\n
sd
\nTo\n<\/p>\n
1.The Subordinate Judge,
\nTiruvallur.\n<\/p>\n
2.The  District Munsif,
\nTiruvallur<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Thiru.Jagadeesan … First vs Thiru.N.Subramani on 2 March, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-23683","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThiru.Jagadeesan ... 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