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2001 DIGILAW 114 (MAD)

S. Vaithiyanathan v. Lakshmi Ammal and Others

2001-01-31

A.RAMAMURTHI

body2001
Judgment :- The Order of the Court was as follows : The aggrieved petitioner has filed the aforesaid CRPs. against the fair and final orders dated 23-9-98 passed in E.A. Nos. 34 to 36 of 1998 in E.A. No. 790/187 in E.P.No. 536/84 in O.S. No. 1111/74 on the file of the Additional District Munsif No. I, Tiruvannamalai. 2. The case in brief is as follows :- The petitioner is the 12th respondent in E.A. No. 790/87 and he filed these three applications to reopen E.A. No. 790/87, to strike out the names of respondents 11 to 13 from the order passed in E.A. No. 1022/84 and the order passed in E.A. No. 1022/84 dated 19-8-97 is not binding on the legal heirs of the deceased first respondent/judgment debtor. The petitioner and respondents 11 and 13 are the legal heirs of Unnamalai Ammal, one of the judgment debtors. The petitioner is not a party in E.A. No. 1022/84 filed by the assignee decree holders to recognise the assignment and also to bring on record the legal heirs of the deceased decree-holder. The legal heirs of the deceased Unnamalai Ammal were not made parties in E.A. No. 1022/84. Even during the pendency of E.A. No. 790/1987, E.A. No. 1022/84 was allowed and the legal heirs of Unnamalai Ammal were impleaded without hearing him and under the circumstances the fair order passed in E.A. No. 790/87 is not binding on the petitioner and the said E.A. No. 790/87 has to be reopened and the names of R. 11 to 13 has to be struck off from the order passed in E.A. No. 1022/84 and also sought the relief that the order is not binding on him. It is stated that by mistake respondents 11 to 13 have been joined as legal heirs in E.A. No. 1022/84 even while E.A. No. 790/87 is binding. Even during the pendency of S.A. No. 761/77, one of the appellants i.e. Appasamy was dead and no legal heirs have been impleaded. It was not brought to the notice of the Court by either party. The fact of death came to knowledge only on 19-8-81. When the heirs of Appasamy Pillai as well as Rathinasababathi Pillai have sold the property on 19-8-81 to Balakrishnan, who already entered into a sale agreement with Rathinasababathy Pillai, Appasamy Pillai and Ganapathy Pillai on 6-9-74. It was not brought to the notice of the Court by either party. The fact of death came to knowledge only on 19-8-81. When the heirs of Appasamy Pillai as well as Rathinasababathi Pillai have sold the property on 19-8-81 to Balakrishnan, who already entered into a sale agreement with Rathinasababathy Pillai, Appasamy Pillai and Ganapathy Pillai on 6-9-74. Ganapathy Pillai died during the trial of the suit and has not left any legal heirs. On 24-8-81 one of the legal heirs of Appasamy Pillai namely Thanikachalam executed released deed in favour of Balakrishnan. Thereafter Balakrishnan filed C.M. P. No. 3376/79 in the second appeal and it was dismissed. Since the legal heirs of the deceased Appasamy Pillai have not been impleaded even during the pendency of the second appeal, the appeal itself is abated with regard to Appasamy Pillai. The Court passed an order on 19-8-97 in E.A. No. 1022/84. But in the short cause of the order, Unnamalai Ammal has been described as dead and R11 to R13 have been styled as legal heirs. In fact no legal heir application has been filed in E.A. No. 1022/84 and as such the description in the short cause title is also wrong. Hence, the order passed in E.A. No. 1022/84 is not legally binding on the petitioner as well as the other legal heirs of Unnamalai Ammal. Hence, the petitions. 3. The respondents/Decree-holders resisted all the applications. The petitioner has entered appearance and participated in the proceedings relating to both execution applications. No specific reason has been assigned for reopening the matter, which has already been disposed of. In fact, the other two legal heirs of Unnamalai Ammal have not joined the petitioner in filing the petitions and they have also not supported the case of the petitioner. In E.A. No. 790/87 notice was ordered and the petitioner has also entered appearance through counsel Mr. R. Govindaraj, who was originally appearing for the 1st Judgment Debtor and also filed a counter in E.A. No. 790/87. The same counsel advanced argument on behalf of R. 11 to R. 13 in E.A. No. 1022/84 and only under such circumstances orders were passed bringing the legal heirs of Unnamalai Ammal as also parties. By mistake orders were passed in E.A. No. 790/87 and this cannot be now taken advantage of. The same counsel advanced argument on behalf of R. 11 to R. 13 in E.A. No. 1022/84 and only under such circumstances orders were passed bringing the legal heirs of Unnamalai Ammal as also parties. By mistake orders were passed in E.A. No. 790/87 and this cannot be now taken advantage of. It is not known under what provisions the present applications are filed by the petitioner. If the petitioner is really aggrieved, he has to move the appellate forum and not by filing these applications. It appears that the petitioner wants to squat on the property for some more time by filing vexatious applications. 4. The executing Court after hearing the parties dismissed the applications filed by the petitioner and aggrieved against this, these revisions are filed. 5. The learned counsel for the revision petitioner contended that the order passed by the Court below is not proper and correct. The Court below ought to have reopened E.A. No. 790/87 as the order passed in E.A. No. 1022/84 recognising the first respondent/husband as the transferee of the decree is not binding on the petitioner as well as the other legal heirs of Unnamalai Ammal. The respondent have no right to execute the decree against the legal heirs of the first judgment debtor when they are not made parties in E.A. No. 1022/84. The Court below ought to have allowed the applications filed by the petitioner. 6. Heard the learned counsel for all the parties. 7. The points that arise for consideration are : i. Whether the order passed by the Court below is proper and correct? ii. To what relief? 8. Points : The suit in O.S. No. 1111/74 was filed by one Ganapathi for specific performance and it was decreed in favour of the plaintiffs. During the pendency of the suit Ganapathy Pillai died and his legal heirs Appasamy Pillai and Rathinasababathy Pillai were added as plaintiffs 2 and 3. The defendants preferred an appeal before the Sub- Court and the appeal was allowed. The plaintiff preferred second appeal before this Court and it was allowed in S.A. No. 761/77 on 24-7-81. On the basis of the decree, E.P. No. 536/84 was filed by the purchasers claiming that they are the decree holders. They also filed E.A. No. 1022/84 to recognise them as transferee from the decree-holder. The plaintiff preferred second appeal before this Court and it was allowed in S.A. No. 761/77 on 24-7-81. On the basis of the decree, E.P. No. 536/84 was filed by the purchasers claiming that they are the decree holders. They also filed E.A. No. 1022/84 to recognise them as transferee from the decree-holder. The original petitioner in E.A. No. 1022/84 died and his legal heirs 2 to 3 were impleaded. They also filed E.A. No. 790/87 to bring the legal heirs of the 1st judgment debtor namely Unnamalai Ammal as she died during the pendency of the execution petition. While E.A. No. 790/87 is pending. E.A. No. 1022/84 was allowed on 19-8-97. Now the petitioner as well as the respondents 11 and 13 have been impleaded as legal heirs of the first judgment debtor Unnamalai Ammal. 9. The learned counsel for petitioner mainly contended that by mistake an order has been passed in E.A. No. 1022/84 even before the disposal of E.A. No. 790/87 and they cannot be brought on record in E.A. No. 1022/84, when admittedly they were not parties. It is not in dispute that the petitioner and Respondents 11 and 13 were not parties in E.A. No. 1022/84. However, the learned counsel for the respondents contended that after service of notice the petitioner engaged a counsel and the counsel put forward arguments in respect of both applications and only after hearing the parties, orders were passed in E.A. No. 1022/84 and simply because E.A. No. 790/87 was not disposed, the petitioner is not entitled to take this technical objection. Moreover, if the petitioner is aggrieved by the orders passed by the executing Court, then the remedy available is only to approach the appellate forum and not to file these applications. It is also not explained under that provisions of law, these applications are filed by the petitioner. 10. The learned counsel for the petitioner further contended that by indicating S. 152, C.P.C. the Court can amend the order and delete the names of the respondents 11 to 13 as they are not impleaded as parties in E.A. No. 1022/84. Normally, only after E.A. No. 790/87 is disposed of, the legal heirs of Unnamalai Ammal are deemed to have been brought on record. But, the petitioner had participated in the proceedings in E.A. No. 1022/84 and put forth his contention. Normally, only after E.A. No. 790/87 is disposed of, the legal heirs of Unnamalai Ammal are deemed to have been brought on record. But, the petitioner had participated in the proceedings in E.A. No. 1022/84 and put forth his contention. It is apparently clear that only by mistake E.A. No. 1022/84 has been ordered while E.A. No. 790/87 is pending and R. 11 to R. 13 have been brought on record. It is pertinent to point out that R. 11 and R. 13 are admittedly the legal heirs of Unnamalai Ammal and as such, there cannot be any objection in bringing them on record. Simply because E.A. No. 790/87 was not disposed of earlier and even before that E.A. No. 1022/84 was disposed of, it will not cause any prejudice either to the petitioner or to respondents 11 and 13. In my view it is only a technical objection raised by the petitioner only to delay the proceedings considering the fact that the petitioner continues to remain in possession of the property. When once the petitioner has participated in the proceedings and invited a finding, he cannot file these three applications belatedly. The petitioner is also not able to point out as to whether any prejudice is caused to him in view of the orders passed in E.A. No. 1022/84 even before the disposal of E.A. No. 790/87. The decree-holder cannot be deprived to enjoy the fruits of the decree and the execution petition is pending since 1984 and the suit was filed in 1974. According to S. 146 and Order 21, Rule 16 the transferee of the decree-holder can apply for execution of a decree. Perusal of the fair order also indicated that R-12 was also represented by the same counsel and R-13 was represented by another counsel. It is settled position of law that one party cannot drag on the proceedings without any valid objection for the execution of the decree heard on technical objections. Under the circumstances, it is not necessary to amend the order passed in E.A. No. 1022/84. It is also made clear from S. 50, CPC, that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased. It is also made clear from S. 50, CPC, that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased. It is only were formality to bring the names of the legal representatives in the petition. The application filed by the petitioner to strike out the names cannot be accepted. Sufficient opportunity has been given to the petitioner to put forth his objection and only after hearing them orders have been passed. The order passed by the Court below is proper and correct. 11. The learned counsel for the respondents relied on 1988 TLNJ 1 that discretionary Jurisdiction should not be exercised where order of subordinate Court renders justice. This decision can be made applicable to the case on hand. 12. It is therefore clear from the aforesaid discussion as well as decision that only after hearing the parties, orders were passed by the executing Court and no prejudice has been caused either to the petitioner or to the other legal heirs of Unnamalai Ammal. There is no illegality or infirmity in the order calling for interference. Hence, the points are answered accordingly. 13. For the reasons stated above, all the revision petitions fail and accordingly are dismissed. Consequently, the connected C.M.P. is also dismissed. Revisions dismissed.