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1998 DIGILAW 205 (MAD)

V. Gurunathan v. P. Munusamy and Another

1998-02-18

K.GOVINDARAJAN

body1998
Judgment : One Pachaipappa Mudaliar borrowed a sum of Rs.5,000 and executed a simple mortgage in favour of one Alamelu Ammal, the second respondent herein, in respect of the property in question. The said property was brought for sale through auctioneers, by the petitioner herein, and the auction was conducted on 35. 1979. The petitioner was the successful bidder for a sum of Rs. 7,100. Thereafter to take possession of the property, the petitioner filed O.S.No.1247 of 1980, on the file of the City Civil Court, Madras. That suit was resisted by the second respondent herein and the first respondent, as second and seventh defendants. After considering the points raised before the trial court in the decree dated 24. 1985, the trial court decreed the suit as prayed for and directed the defendants 6 and 7 therein to deliver vacant possession of the suit property to the plaintiff/petitioner. After obtaining the decree, the petitioner filed E.P.No.2292 of 1990 to execute the same. In the said execution petition, the first respondent herein filed E.A.No.3939 of 1991 under Sec.47 of the Code of Civil Procedure to declare the decree in O.S.No. 1247 of 1980 as unexecutable and dismiss the said execution petition. The same was resisted by the petitioner. The court below though rejected all other points raised by the first respondent has accepted the case of the first respondent, in view of the decree passed in O.S.No.1495 of 1979 and the order of injunction passed therein pending the suit, and thereby decided that the decree obtained by the petitioner herein cannot be executed. Aggrieved against the same, the petitioner has filed the above revision. 2. As stated earlier, after purchasing the property in question, to get possession from the mortgagee, the petitioner filed O.S.No.1247 of 1980, That was decreed on 24. 1985. The first respondent filed appeal against the decree passed in favour of the petitioner, in A.S.No.373 of 1986, That was also dismissed on 7. 1987. In the meanwhile, one Pachaiappan, the father of the first respondent filed a suit in O.S.No.1495 of 1979. Pending the suit, he died and the first respondent and one Yasodammal were impleaded as his legal representatives. That suit was decreed on 19. 1983. It is not in dispute that the respondents did not take steps to execute that decree. 3. In the meanwhile, one Pachaiappan, the father of the first respondent filed a suit in O.S.No.1495 of 1979. Pending the suit, he died and the first respondent and one Yasodammal were impleaded as his legal representatives. That suit was decreed on 19. 1983. It is not in dispute that the respondents did not take steps to execute that decree. 3. In the suit filed by the petitioner in O.S.No.1247 of 1980, the decree in O.S.No.1495 of 1979 was marked as Ex.B-1 and the order granting injunction was also marked as Ex.C-1 Relying on those documents, it was resisted by the respondents before the trial court that the petitioner is not entitled to a decree for possession. While dealing with the same, the trial court in the judgment dated 24. 1985 has held as follows: "Ex.B-1 is the certified copy of an ex parte preliminary decree in O.S.No.1495 of 1979 dated 19. 1983 for redemption of the suit property obtained by the present deceased first defendant against the present second defendant and the present plaintiff in this suit. Ex.C-1 is the original petition in I.A.No.4077 of 1979 in O.S.No.1495 of 1979 under 0.39, Rules 1 and 2 of C.P.C. for an injunction against the present second defendant to restrain her to bring the suit property for sale on 3. 1979, and the petition was ordered on payment of Rs. 1,300 and a temporary injunction was granted till 14. 1979. Thus Ex.C-1 shows, that a temporary injunction was granted only upto 14. 1979, and there was no injunction for the sale held on 35. 1979. In fact, O.S.No.1495 of 1979, the suit for redemption was decreed, exparte only on 19. 1983, quite long after the sale Ex.A-I in favour of the plaintiff on 8. 1979. Thus the sale in favour of the plaintiff is not hit by Sec.52 of the Transfer of Property Act". From the above finding of the trial court in O S.No.1247 of 1980 it can be seen that the case of the respondents regarding the effect of the decree in O.S.No. 1495 of 1979 was rejected by the trial court. The said judgment was confirmed in A.S.No.373 of 1986. 4. Now by filing the present application, under Sec.47 of the Code, the first respondent sought to raise the same issue. That has been accepted by the executing court. The said judgment was confirmed in A.S.No.373 of 1986. 4. Now by filing the present application, under Sec.47 of the Code, the first respondent sought to raise the same issue. That has been accepted by the executing court. So, the executing court has allowed the first respondent to reagitate the matter regarding the effect of the decree in O.S.No. 1495 of 1979. 5. The learned counsel appearing for the respondents had submitted that since the trial court in O.S.No.1247 of 1980 has not considered the said issue and has not given any specific finding regarding the effect of the decree in O.S.No. 1495 of 1979, the respondents are entitled to agitate the same in the present application filed under Sec.47 of the Code. Such submission cannot be countenanced. First of all, the learned Assistant Judge, XV Assistant City Civil Court, Madras has dealt with the said issue and held that the decree in O.S.No. 1495 of 1979 cannot be put against the petitioner herein. Moreover, whether the said issue has been considered or not by the trial court, the respondents have agitated the same before the trial court. Now the respondents cannot be allowed to reagitate the same in the present application filed under Sec.47 of the Code. 6. In support of the abovesaid conclusion I seek aid from the decision in Daniel Nadar v. Ananthan Pillai (1978)1 M.L.J. 125 , wherein Varadarajan, J., as he then was, has held as follows: "Therefore, though the question of the validity and binding nature of the sale by Raman Pillai in favour of Daniel Nadar and Daniel Nadar’s right to partition and separate possession of 2 acres in survey No.3020-A had not been specifically considered in O.S.No.293 of 1120 M.E., it is a matter which ought to have been considered in the former suit and should be deemed to be a matter which was directly and substantially in issue in that suit". 7. Further, Srinivasan, J., as he then was, in A. V.Hanifa v. Salima Dhanu, A.I.R. 1992 Mad 111, has held as follows: "Learned counsel for the petitioner submits that under Sec.47(l), Civil Procedure Code all questions arising between the parties to the suit in which a , 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. Learned counsel wants me to interpret this section as meaning that any question which is raised by a party to the suit should be considered by the executing court if it relates to execution, discharge or satisfaction of the decree. Such a wide interpretation is unsustainable. When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial court. If a question was raised before the trial court at the stage of trial and decided by the trial court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial court at the stage of trial and if he omits to raise it, even then he cannot raise it under Sec.47 before the executing court." 8. Moreover, once the matter has already been decided in a proceeding between the parties, they cannot be allowed to reagitate the matter again in an application under Sec.47 of the Code. In view of the above, the order of the court below passed in E.A.No.3939 of 1991 cannot be sustained and it is set aside. Accordingly, this revision is allowed. No costs.