Research › Browse › Judgment

Madras High Court · body

1993 DIGILAW 81 (MAD)

M. Rangasamy v. S. Palanivelu

1993-02-04

BAKTHAVATSALAM

body1993
Judgment :- 1. Both the revision petitions are filed under Article 227 of the Constitution of India, against orders of the Subordinate Judge, Salem, in unnumbered R.E.A. Nos. of 1993 in R.E.P. No. 86 of 1990 in O.S. No. 1192 of 1980. Two petitions were filed before the Sub Court, Salem, one under O. 21, R. 26 and S. 151, C.P.C. praying to stay the passing of the order of delivery in the execution petition filed by the petitioner under O. 21, Rr. 96, 97, 101 and S. 151 C.P.C. and the other petition was filed under O. 21 Rr. 96, 97, 101 and S. 151 C.P.C. praying the court to order the Amin or any officer under the direction of the court to record the petitioners objection and to give an opportunity to the petitioner to explain his case. When both the abovesaid petitions were dismissed, the petitioner is before this Court with these civil revision petitions. 2. It is admitted that the petitioner is a third party. The petitioner contended that he is a third party, that he is a tenant under the respondents 3 to 5 in the suit property and that he obtained an order from the Tahsildar for his tenancy in the suit property, on 9.1.1991. It is also contended that the petitioner herein does not know about the proceedings in E.P. No. 86 of 1990 on the file of Sub Court, Salem with regard to the suit property all these years and that his right of tenancy in the suit property cannot be disturbed, due to the order in E.P. 86 of 1990 mentioned above. 3. Per contra, it is contended on behalf of the respondents (Caveator) that these petitions cannot be entertained at this stage and that the petitioner who is a third party has filed the petition only to defeat the rights of the respondent/decree holder. 4. The learned Subordinate Judge, Salem found that the delivery order dated 4.12.1992 was passed on merits in E.P. No. 86 of 1980 and the respondents were directed to deliver the suit property to the decree holder within a month from the date of the said order, that the respondents have not complied with the said order and that the delivery has not been effected by the respondents. The respondents filed a petition in E.A. 5/93 seeking the stay order in E.P. 86/90 till the disposal of C.R.P. 3543/92 and the said application was dismissed on 5.1.1993. The lower Court has further found that the decree holder/auction purchaser purchased the property is court auction on 8.2.1979 in E.P. 42 of 1978 in O.S. No. 320 of 1977 and the said sale was confirmed on 7.8.1979. In pursuance of the order in E.P. No. 41 of 1978, the respondents seem to have filed a suit in O.S. 1192/80 for 4/5th share in the suit property and also obtained a final decree also. According to the learned Subordinate Judge, the respondents/judgment debtors in E.P. 86/90 had lost tide even on 8.2.1979 i.e. respondents 2 to 5 herein. In E.P. 41/78 the suit property was sold. So the present petitioner had filed the petition as a tenant in the suit property and the learned Subordinate Judge has found that the lease deed dated 27.1.1978 and the order of Tahsildar dated 9.1.1991 cannot be accepted. It is also seen that when the said lease deed was stated to have been executed by the judgment debtors on 27.1.1988 for the lease in the suit property, they have no title or interest in the suit property and the suit property was sold to the decree holder/auction purchaser in Court sale on 8.2.1979. It is also seen that the lease deed and the order of Tahsildar were made during the pendency of the Court order in O.S. 1192 of 1980 and O.S. 320 of 1977 between the decree holder and the judgment debtor. Following a judgment of the Kerala High Court in A.I.R. 1985 Kerala 204 and in A.I.R. 1980 M.P. 146 the lower Court has held that the petitioner has no right to file the said petitions under O. 21 R. 97, C.P.C. and accordingly rejected both the petitions. Aggrieved by the same, the petitioner is before this Court. 5. Mr. R. Krishnamoorthy, the learned Senior Counsel appearing for the petitioner contends that the lower Court has erred in dismissing both the petitions of the petitioner. According to the learned Senior Counsel, the orders of the lower Court cannot be sustained in view of the provisions contained in the Code of Civil Procedure and that the lower court has misread O. 21. According to the learned Senior Counsel, the orders of the lower Court cannot be sustained in view of the provisions contained in the Code of Civil Procedure and that the lower court has misread O. 21. R. 26 which are not applicable to the facts of the cases on hand. 6. Mr. S.P. Subramaniam, the learned counsel for the first respondent who appeared for caveator, has taken notice and has also filed a counter-affidavit. A reading of the counter affidavit clearly shows that now the respondents have been kept at bay for the past 12 years. According to the learned counsel for the respondents, the revision petitions under Art. 227 of the Constitution of India need not be entertained. When the petitioner has invoked the jurisdiction of the Executing Court under O. 21 Rr. 96 and 97 C.P.C. According to the learned counsel, the petitioner has claimed under a false lease deed to defeat the fights of the respondents. The learned counsel also states that only respondents 2 to 5 are in possession. Learned counsel also points out that when an order in R.E.P.86 of 1990 on the file of Sub Court, Salem for executing the final decree had been negatived, the respondents 2 to 5 filed C.R.P. 3543 of 1992 before this Court along with stay petition, this Court has granted only notice of motion in the civil revision petition and no order of interim stay has been granted. Therefore, respondents 2 to 5 took out another application in a pending second appeal against final decree proceedings and that in the said affidavit they did not allege that the suit lands had been leased to the petitioner and on the other hand they alleged that they were in possession of the suit lands. Learned counsel also points out that the said petition was heard on 4.1.1993 and when the learned Judge commenced to dictate an order, learned Senior Counsel who appeared for the petitioner at that time sought for an adjournment stating that he would withdraw the said petition after informing his clients and that on 6.1.1993 the said petition was dismissed as withdrawn. C.R.P. No. 3543 of 1992 was dismissed on 11.1.1993. The petitioner, as such, has come up before this Court, at this stage. 7. After considering the arguments of Mr. R. Krishnamurthy, the learned Senior Counsel for the petitioner and of Mr. C.R.P. No. 3543 of 1992 was dismissed on 11.1.1993. The petitioner, as such, has come up before this Court, at this stage. 7. After considering the arguments of Mr. R. Krishnamurthy, the learned Senior Counsel for the petitioner and of Mr. S.P. Subramaniam, the learned counsel for the first respondent, and on going through the relevant materials produced before me, I am of the view that these petitions filed under Art. 227 of the Constitution of India need not be entertained. As I have already stated, the respondent has been kept at bay for the past 13 years. C.R.P. No. 3543 of 1992, which has been filed by respondents 2 to 5 has been dismissed by Arunachalam, J. by order dated 11.1.1993. A reading of the order of the learned Judge will clearly show as to how the first respondent has been driven from pillar to post for several years by respondents 2 to 5 and now the petitioner is trying to stall the proceedings. I do not see how O. 21 R. 96 and 97 C.P.C. will apply to the facts of the cases. Looking at from any angle, these two civil revision petitions are not fit cases to be entertained under Art. 227 of the Constitution of India, as rightly pointed out by the learned counsel for the first, respondent. When the respondents 2 to 5 have taken a clear stand before this Court, pending second appeal, that they are in possession of the suit property, it is highly surprising to note how the petitioner can contend now that he is in possession of the suit property. It is well settled that this Court is exercising the discretionary jurisdiction under Art. 227 of the Constitution. The mere fact that a different view could have been taken by the Executing Court would be no ground to interfere with the impugned orders. If all the relevant factors have been borne in mind and correct legal principles applied and then right or wrong, if a view has been taken by the lower court, in my view the interference under Art. 227 of the Constitution is wholly unwarranted. Further, the discretionary jurisdiction of this Court should not be exercised when the lower Court has rendered justice, especially looking at the facts of the cases on hand. Further, the discretionary jurisdiction of this Court should not be exercised when the lower Court has rendered justice, especially looking at the facts of the cases on hand. As held by the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde AIR 1978 S.C. 855 in a petition under Art. 227 of the Constitution of India, this Court should not interfere with an order which has been passed properly. It is also stated therein that this Court under Art. 227 has a limited jurisdiction. The power under Art. 227 of the Constitution is one of judicial superintendence and cannot be exercised to upset the conclusions on facts or law however erroneous that may be. As such, I am of the view that the orders impugned herein, are not orders to be interfered with under Art. 227 of the Constitution of India. There are no merits in these petitions and accordingly they are dismissed. No costs.