Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 250 (MAD)

R. Kuppammal and others v. T. R. Nataraja Achari

2001-02-23

PRABHA SRIDEVAN

body2001
Judgment : The respondent obtained a decree for possession in O.S.No.1206 of 1983, against one Kanakavalliammal whose legal representatives are the petitioners. The suit was decreed. The appeal was allowed. Against that, the respondent filed the second appeal before this Court which was allowed confirming the decree of the trial Court. The petitioners’ predecessor moved the Supreme Court and her special leave was rejected on 21.1.1993. Thereafter, the respondent filed E.P.No.1899 of 1993. During the pendency of the execution petition, the judgment-debtor died. Thereafter, the present petitioners were brought on record as her legal representatives. They filed an application under Sec.47, C.P.C. which was rejected, against which the present C.R.P. has been filed. 2. Mr.A.L.Namasivayam, learned counsel for the petitioners submitted that this was a case where an illegal decree was sought to be executed. The respondent purchased this property in an auction under Sec.69 of the Transfer of Property Act, the property having been mortgaged by Kanakavalliammal. According to the learned counsel for the petitioners, the sale itself is void. The next submission that was made by the learned counsel is that assuming without admitting that the sale was valid. It was valid only in respect of 1/8th of the property, which is the share to which the judgment-debtor was entitled to. The decree cannot be executed against the remaining 7/8th, which belongs to the petitioners. Learned counsel also submitted that even if the original judgment-debtor did not plead these facts in her defence,the Court should intervene in the interest of justice. He relied on the following decisions: (1) Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. and another (1996)4 S.C.C. 178 ; (2) Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal (1943)1 MLJ. 92 : A.I.R. 1943 Mad. 301; (3) V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others (1975)2 MLJ. 27 : A.I.R. 1975 Mad. 92 : A.I.R. 1943 Mad. 301; (3) V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others V.P.Padmavathi Ammal and others v. P.S.Swaminatha Iyer and others (1975)2 MLJ. 27 : A.I.R. 1975 Mad. 343; (4) Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another Satyapal Uttamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala and another A.I.R. 1993 Bom. 203; (5) S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others S.P. Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. and others A.I.R. 1994 S.C. 853; (6) V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others V.K.K.Peer Bathummai Beevi v. Nagur Meerammah Beevi and others A.I.R. 1937 Mad. 108 and finally (7) Annapooni v. Janaki (1995)1 L.W. 141. According to the learned counsel, the trial Court had ample powers to intervene when it finds that a decree suffers from an error of law apparent on the face of the record due to the non-application of the mind of the Court which passed the decree. 3. Mr.K.Mani, learned counsel for the respondent. On the other hand submitted that this was nothing but an effort to defeat the respondent from executing a decree that had been obtained in 1986. He submitted that this was not the only effort of the petitioners to somehow scuttle the decree-holders right to possession. Even during the lifetime of the judgment-debtor, she had set up her son-in-law, who is none other than the husband of the first petitioner herein to file a suit for injunction setting up various untenable pleas. The suit was filed before the City Civil Court in O.S.No.7905 of 1993 for bars injunction. In that suit, Kanakavalliammal was made as the first defendant and the present respondent was made as the second defendant. Interim injunction was rejected by the trial Court and thereafter, this petition has been filed stating falsely that the decree is inexecutable. The suit was filed before the City Civil Court in O.S.No.7905 of 1993 for bars injunction. In that suit, Kanakavalliammal was made as the first defendant and the present respondent was made as the second defendant. Interim injunction was rejected by the trial Court and thereafter, this petition has been filed stating falsely that the decree is inexecutable. Learned counsel submitted that all these points now raised by the learned counsel for the petitioner were available to the judgment-debtor and when she had failed to raise them when she had the opportunity to do so, it is not open to the petitioners as her legal representatives to raise them now more than a decade after the decree has been passed. He relied on the following judgments: (1) A.V. Hanifa v. Salima Dhanu A.V. Hanifa v. Salima Dhanu A.V. Hanifa v. Salima Dhanu A.I.R. 1992 Mad. 111; (2) Basudeo and another v. The IVth Additional District Judge, Jhansi and others Basudeo and another v. The IVth Additional District Judge, Jhansi and others Basudeo and another v. The IVth Additional District Judge, Jhansi and others A.I.R. 1997 All. 288; (3) Rameshwar Das Gupta v. State of U.P. and another Rameshwar Das Gupta v. State of U.P. and another Rameshwar Das Gupta v. State of U.P. and another A.I.R. 1997 S.C. 410; (4) V.Gurunathan v. P.Munusamy and another V.Gurunathan v. P.Munusamy and another V.Gurunathan v. P.Munusamy and another (1998)2 MLJ. 140 ; (5) Kuttiammal and others v. Abraham and another Kuttiammal and others v. Abraham and another Kuttiammal and others v. Abraham and another (2000)2 MLJ. 433 ; and (6) R.P.A.Valliammal v. Palanichami Nadar and others R.P.A.Valliammal v. Palanichami Nadar and others R.P.A.Valliammal v. Palanichami Nadar and others A.I.R. 1997 S.C. 1996. 4. Thebackground of the case is this: The original judgment-debtor Kanakavalli, was the owner of the suit property. She had created mortgage in favour of one Swaminatha Achari. She defaulted in payment of principal and interest. Therefore, the mortgagee invoked the provisions of Sec.69 of the Transfer of Property Act and brought the property to sale. The respondent was the highest bidder. The sale deed was executed in favour of the respondent on 18.3.1974. The mortgagor did not take any steps to cancel the sale deed. The mortgagor was permitted to occupy the ground floor for sometime. Then, when she refused to deliver possession, the suit was filed. 5. The respondent was the highest bidder. The sale deed was executed in favour of the respondent on 18.3.1974. The mortgagor did not take any steps to cancel the sale deed. The mortgagor was permitted to occupy the ground floor for sometime. Then, when she refused to deliver possession, the suit was filed. 5. In the written statement, the mortgagor had stated that the property belonged to her mother who had gifted the property to her grand children and therefore she had no right to create any encumbrance on the said property. In any event, the mortgage due has been repaid and that she was not bound to hand-over vacant possession. The trial Court considered the oral and documentary evidence and found that the auction under Sec.69 of Transfer of Property Act was a valid one. The first appellate Court allowed the appeal on the ground that there was no evidence of auction sale and against this, the second appeal was filed. The second appeal was allowed in favour of the respondent herein. This Hon’ble Court held that: “There was an auction by the auctioneers M/s.Chandramani & Co. and in that auction, the plaintiff was the highest bidder and in pursuance of that, the plaintiff has executed a sale deed Ex.A-1 in favour of the plaintiff”. 6. Thereupon, this High Court gave the respondent/ appellant two months time to vacate the premises. Against this, the special leave petition was filed. From a consideration of the pleadings and the judgments in the suit the appeals thereon, it is seen that not only had the defendant attacked the validity of the auction under Sec.69 of the Transfer of Property Act, she had also raised the defences that she was not the owner of the property because her mother had settled the property on her grand children. Both these pleas have been rejected and the respondents decree for recovery of possession had been confirmed by the highest Court of our country. It is interesting to note that after the dismissal of the S.L.P. on 21.1.1993, the son-in-law of the judgment-debtor had filed a suit against the judgment-debtor and the respondent herein. The VIII Assistant City Civil Judge who heard the interlocutory application for injunction had this to say: 7. A perusal of this order shows that even in the counter filed by Kanakavalliammal. The VIII Assistant City Civil Judge who heard the interlocutory application for injunction had this to say: 7. A perusal of this order shows that even in the counter filed by Kanakavalliammal. She merely says that the suit property had been sold for a very low price. There is no reference to her children being the actual owners of the suit property. In the Sec.47 application the petitioners challenged the validity enforceability and executability of the decree on two grounds. One is that Kanakavalliammal was not the absolute owner of the property since it originally belong to Vaduvaambal and thereafter, she had only 1/8th share in the property and the petitioners had 7/8th share. The other allegation is that there was no auction. Everything was fraudulent and that the petitioner had no notice of the mortgage auction. Therefore, according to them, the Court could under Sec.47, C.P.C. enquire into their claims. 8. Sec.47, C.P.C. reads as follows: “All questions arising between the parties to the suit in which the 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.” The crucial thing to remember is that under Sec.47, C.P.C., the questions to be dealt with must relate to the execution, discharge or satisfaction. The Section assumes that a valid decree exists unless the decree is said to be a nullity. The question that should be decided should also arise between the parties. If it does not, the Section does not apply. The Section also makes it clear that the questions that arise for decision may be ones that arises between the parties themselves or their representatives. The representatives include not only the legal representatives, but also the representatives in interest. 9. In this case, the petitioners have been brought on record as the legal representatives of the deceased judgment-debtor in the E.P. as originally filed. The questions that they want to raise have already been raised in the suit and rejected. I have already extracted the recitals of the written statement, wherein the predecessor in interest of the petitioners namely, Kanakavalliammal had stated that the auction was not valid and that she had no right to execute the mortgage, since the property did not belong to her, but had been settled on her children by her mother. I have already extracted the recitals of the written statement, wherein the predecessor in interest of the petitioners namely, Kanakavalliammal had stated that the auction was not valid and that she had no right to execute the mortgage, since the property did not belong to her, but had been settled on her children by her mother. These questions have been decided by the trial Court and it has been confirmed by the Supreme Court against the judgment Debtor. Sec.47, C.P.C. cannot be invoked for reviving all the questions that have been decided during the course of trial. The Court below discusses this in the following words: 10. We also see from a perusal of the judgment of the Court below that oral and documentary evidence were received and it is only thereafter a decision was arrived at. The second petitioner herein, Dilli Ammal was examined as witness on behalf of the petitioners. What the petitioners are seeking to do is to raise the question which was raised already before the trial Court. 11. In A.V. Hanifa v. Salima Dhanu A.V. Hanifa v. Salima Dhanu A.V. Hanifa v. Salima Dhanu A.I.R. 1992 Mad. 111 this Court held that when Sec.47(1) refers to all questions, it only means all questions which were not raised in the suit and decided by the trial Court. In the same decision, this Court also held that 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, C.P.C. before the executing court. 12. In Basudeo v. The IVth Additional District Judge, Jhansi A.I.R. 1997 All. 288 the Allahabad High Court held as follows: “The question which would have been raised as a defence in the suit cannot be raised after the decree is passed since it would amount to questioning the validity of the decree by opening a new front of defence.” 13. In V.Gurunathan v. P.Munusamy V.Gurunathan v. P.Munusamy V.Gurunathan v. P.Munusamy (1998)2 MLJ. 140 the case that came before this Court was very similar to this one. One ‘P’ executed a mortgage in favour of one ‘A’. It was brought to sale by auction. The successful bidder took possession and filed the suit for recovery of the same. In V.Gurunathan v. P.Munusamy V.Gurunathan v. P.Munusamy V.Gurunathan v. P.Munusamy (1998)2 MLJ. 140 the case that came before this Court was very similar to this one. One ‘P’ executed a mortgage in favour of one ‘A’. It was brought to sale by auction. The successful bidder took possession and filed the suit for recovery of the same. In E.P., the question was raised that the decree was inexecutable in view of prior proceedings in O.S.No.1495 of 1979. This Court on a perusal of the judgment in the suit whose decree was sought to be executed, found that the objection raised in the Sec.47 application was already raised before the trial Court and a finding was given against the defendants. The learned Judge relied on the following passage in Daniel Nadar v. Ananthan Pillai (1978)1 MLJ. 125 : “Therefore, though the question of the validity and binding nature of the sale by Raman Pillai in favour of Daniel Nadar and Daniel Nadars 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 was directly and substantially in issue in that suit.” Similarly, in this case too, the question of validity and binding nature of the auction sale and the extent of right of Kanakavalliammal to mortgage the suit property were matters which were actually raised in the suit and which should be deemed to have been considered by the trial Court since it was a matter directly and substantially in issue. 14. In the decision reported in Kuttiammal v. Abraham (2000)2 MLJ. 433 this Court has frowned upon cases where judgment-debtor and his family adopt frustrating tactics to keep the decree holder at bay. 15. In the decision reported in R.P.A.Valliammal v. Palanichami Nadar R.P.A.Valliammal v. Palanichami Nadar R.P.A.Valliammal v. Palanichami Nadar A.I.R. 1997 S.C. 1996 the Supreme Court held that a question which has once been negatived and become final, cannot be raised again by the heir. 16. All these cases apply squarely to the present case. On the other hand, the decision relied on by the learned counsel for the petitioners do not apply to this case. The case reported in Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. On the other hand, the decision relied on by the learned counsel for the petitioners do not apply to this case. The case reported in Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhlpur v. Gokul Narain (dead) by L.Rs. (1996)4 S.C.C. 178 was a case where the decree was found to be a nullity and non est and therefore the Supreme Court said, the invalidity can be set up even at the stage of execution. The decision reported in Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal Egmore Benefit Society, 3rd Branch Ltd. by Secretary and Treasurer, T.G. Damodara Mudaliar v. K.Aburupammal (1943)1 MLJ. 92 : A.I.R. 1943 Mad. 301 is with regard to the right of a mortgagee to exercise the power of sale under Sec.6 of Transfer of Property Act and purchase the property himself. This decision cannot apply to the instant case because here, the respondent is Nataraja Achari, whereas the mortgagee was Swaminatha Achari. The decision reported in V.P.Padmavathi Ammal v. P.S.Swaminatha Iyer V.P.Padmavathi Ammal v. P.S.Swaminatha Iyer V.P.Padmavathi Ammal v. P.S.Swaminatha Iyer (1975)2 MLJ. 27 : A.I.R. 1975 Mad. 343 is again a case which dealt with the effect of purchase by a mortgagees nominee. If the plaintiff had been the nominee of the mortgagee, that was a question that ought to have been raised by Kanakavalliammal. If she failed to raise it, it is not open to the petitioners to raise it now. No doubt, in the case it was held that if the plaintiff was really the nominee of the mortgagee, the sale would be ad initio void. The case however set up by the judgment-debtor in the written statement was that there was a sale without any valid auction, that the respondent and Swaminatha Achari had collusively set up a case as if there was an auction. As stated earlier, it has been found by this Court in Second Appeal No.135 of 1988 that there was a valid auction and the plaintiff was the highest bidder. So, this case also does not apply to the present case. 17. The decision reported in Satyapal Utamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala A.I.R. 1993 Bom. As stated earlier, it has been found by this Court in Second Appeal No.135 of 1988 that there was a valid auction and the plaintiff was the highest bidder. So, this case also does not apply to the present case. 17. The decision reported in Satyapal Utamchand Chowdhary v. Rukayyabai Huseinbhai Bandukwala A.I.R. 1993 Bom. 203 was a case where there was a subsequent suit for declaration that the auction sale was void and the Bombay High Court held that this was not barred. In this case, there is a specific pleading in the plaint that the auction sale which was conducted in 1974 was not challenged until 1983 by Kanakavalliammal as being void or invalid. Therefore, this decision also does not come to the aid of the petitioners. 18. The decision reported in S.P.Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. S.P.Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. S.P.Chengalvaraya Naidu (died) by L.Rs. v. Jagannath (died) by L.Rs. A.I.R. 1994 S.C. 853 was a case where a litigant withheld vital document and therefore, the Supreme Court frowned upon it as fraud by litigant. There is absolutely no application of that decision to the instant case. 19. In V.K.K.Peer Bathummai Beevi v. Nagur Meerammai Beevi V.K.K.Peer Bathummai Beevi v. Nagur Meerammai Beevi V.K.K.Peer Bathummai Beevi v. Nagur Meerammai Beevi A.I.R. 1937 Mad. 108 a party was dismissed from the suit was unnecessary party. Subsequently, he was brought on record as legal representative of the judgment-debtor. He claimed, the right in the property in his own right and the Court held that this question could be determined in an application under Sec.47. 20. Finally, the learned counsel for the petitioners relied on a case reported in Annapoorni v. Janaki Annapoorni v. Janaki Annapoorni v. Janaki (1995)1 L.W. 141. That was a case where a wife claiming the property of her husband as Class I heir, filed a suit against her mother-in-law. The mother-in-law after filing a written statement remained ex parte. This Court in suo motu exercise of its power held that when the wife claimed as a Class I heir, the Court below erred in ignoring the rights of the defendant as the mother of the deceased as Class I heir and therefore, set right the error committed by the Court below. In this cases, Kanakavalliammal had agitated her right up to the Supreme Court. In this cases, Kanakavalliammal had agitated her right up to the Supreme Court. All the questions raised by the petitioners herein were raised and rejected. Now, the petitioners claim that Kanakavalli Ammal had no right to mortgage the property and this question should be decided under Sec.47, C.P.C. This was not only a question that ought to have been raised by Kanakavalliammal, but was in fact raised because she stated in her written statement that she was not entitled to the entire property and when the Court held against her, the only conclusion that can be drawn is that the Court rejected her contention that she had no right to mortgage the entire property. 21. Even in the present application, the Court below has afforded the fullest opportunity to the petitioners and had found that all these matters have already acquired finality and the petitioners should not be allowed to raise the same issues again and again. Learned counsel for the petitioner repeatedly said that when the decree itself is a nullity, this Court should intervene and decide the question. But in the decision relied on by him, reported in Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. Urban Improvement Trust, Jodhpur v. Gokul Narain (dead) by L.Rs. (1996)4 S.C.C. 178 the objection raised by the judgment-debtor was regarding an issue which struck at the very jurisdiction and authority of the Court. This is not a similar case. The Court that passed the decree had the jurisdiction to pass the decree and the decree is not a nullity. The auction sale under Sec.69 was found to have been conducted validly. The claim that the mortgagor was not entitled to mortgage the entire property was also found to be incorrect. The subsequent attempt made by the first petitioners husband to stall the execution of the decree also met with defeat. I can only repeat the words used in Kuttiammal v. Abraham (2000)2 MLJ. 433 : “This is a case where the decree-holder had been driven from pillar to post by the machinations of the respondents and they have been successfully thwarting his efforts by some proceedings in Court.” 22. The respondent has been fighting for 15 years to recover possession and the petitioners have been successful in keeping him at bay till this date. The respondent has been fighting for 15 years to recover possession and the petitioners have been successful in keeping him at bay till this date. There is no justification either under law or equity to consider the petition under Sec.47, C.P.C. The C.R.P. is dismissed with costs and the respondent shall be entitled to execute the decree forthwith.