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2003 DIGILAW 328 (MAD)

P. Mohan v. G. Chandrasekaran

2003-03-03

A.RAMAMURTHI

body2003
Judgment :- The revision petitioner is judgment debtor No.6 and he has filed the present revision petition aggrieved against the order dated 9.8.2001 made in E.A.No.103/2001 in E.A.No.98 of 2000 in E.P.No. 34 of 1988 in O.S.No. 90 of 1977 on the file of the Principal Subordinate Judge, Thanjavur. 2.The revision petitioner filed E.A.No. 103/2001 under Order XVI Rules 1and 2 C.P.C. to issue issue necessary summons to Tmt. N.Dhanalakshmi, G. Naga Pillai and N.Srinivasan to appear before the Court to produce the Original Sale deeds dated 18.6.99 and 21.6.99 and give evidence regarding these documents. The revision petitioner deposited the requisite amount on 22.2.2001 in E.P.No.34/1988 under Order XXXIV Rule 5 C.P.C and the decree holder had also withdrawn the amount. The decree is fully discharged. The respondent is only auction purchaser and he cannot have any grievance. In fact, the respondent filed E.A.No. 98/2000 for delivery of possession of the property measuring an extent of 31,220 sq.ft with build up area of about 5,000 sq.ft. worth of more than Rs. 40,00,000/- and he bid the same in the auction in E.P.No.34/88 for a sum of Rs. 2,00,200/-. The decree amount is only Rs.73,000/-. On the basis of the sale certificate, the respondent wanted to take delivery of possession. The revision petitioner filed E.A.No. 98/2000. But, the respondent was managed to get a sale certificate by playing fraud on the Court and he purchased as benamidar of his own sister Tmt. Dhanalakshmi, her husband- Thiru. Naga Pillai and thier son Sreenivasan by whom a major portion of the suit property measuring 26,235 sq.ft was purchased after proclamation and before the Court auction under two registered sale deeds dated 21.6.99 and 18.6.99 accepting the market value fixed by the Collector under Section 47-A of the Stamp Act for Rs.34,52,200/-. The revision petitioner also gave a telegram to the three persons informing them not to purchase the property since he has already filed O.S.No.1 of 2001 for partition and separate possession of the share in the property. They sent a reply about the purchase of the property after proclamation and before the court sale. In the circumstances, they have to be examined to expose the fraud played on the Court by the auction purchaser who is the own brother of Tmt.Dhanalaishmi Ammal. Their examination will establish the fraud played on Court by the auction purchaser and hence the revision. In the circumstances, they have to be examined to expose the fraud played on the Court by the auction purchaser who is the own brother of Tmt.Dhanalaishmi Ammal. Their examination will establish the fraud played on Court by the auction purchaser and hence the revision. 3.The respondent filed a counter and denied the various averments. The revision petitioner also filed a petition under Order XXI Rule 90 C.P.C. which was rejected by this Court and against that he preferred a petition to condone the delay of 181 days and they were also dismissed by this Court on 17.7.2001. Order XVI Rule 1 and 2 C.P.C. is not applicable to the execution. But, the petition filed by the petitioner is not a bonafide one and he had done so only to drag on the proceedings to deprive the auction purchaser to take delivery of the property through process of Court. 4.The Court below after hearing the parties dismissed the application and aggrieved against this the revision petitioner has come forward with the present revision petition. 5.Heard the learned counsel for the parties. 6.The points that arise for consideration are (i) Whether the order passed by the Court below is proper and correct? (ii) Whether the E.A.No.103/2001 can be allowed? (iii)to what relief? 7.Points: The revision petitioner is one of the judgment debtors and a legal heir of Pakkirisami Pillai and aggrived against the dismissal of E.A.No.103/2001 filed to issue summons to Danalakshmi Ammal, her husband - Naga Pillai and their son - Srinivasan to appear before the Court to produce two original sale deeds bearing document No. 2078 dated 18.06.1999 and 2593 dated 21.06.1999 and to give evidence regarding these documents. 8.The suit property was mortgaged by Pakkirisami Pillai, father of the revision petitioner in favour of Sri Palaniyappa and Company represented by its Partner Manickam Chettiar. Preliminary decree was passed on 5.7.78 and final decree was passed on 29.4.1980. Pakkirisami Pillai died on 2.4.81 and his legal representatives are judgment debtor Nos. 2 to 7 and the present revision petitioner is the 6th judgment debtor in E.P.No.34/88. This E.P.No.34/1988 has been filed for sale of the property. In the mean time, the revision petitioner filed the suit for partition and separate possession of his 1/6th share on 8.10.88. Pakkirisami Pillai died on 2.4.81 and his legal representatives are judgment debtor Nos. 2 to 7 and the present revision petitioner is the 6th judgment debtor in E.P.No.34/88. This E.P.No.34/1988 has been filed for sale of the property. In the mean time, the revision petitioner filed the suit for partition and separate possession of his 1/6th share on 8.10.88. The decree holder Manickam Chettiar purchased the suit property in the court auction for Rs.2,00,100/- on 3.7.89 and one of the judgment debtors filed E.A.No.164/1999 under Order XX1 Rule 90 C.P.C.to set aside the sale and the sale was also set aside. The property was brought under Court auction and the respondent was the successful bidder for Rs.2,00,200/- on 21.6.99. This being so, the revision petitioner filed E.A.under Order XXI, Rule 90 C.P.C. to set aside the auction sale alleging fraud and collusion between the decree holder and the other judgment debtors on 19.8.99 and the Executing Court dismissed the E.A. On 1.10.89. Aggrieved against this the present revision petitioner filed C.R.P. with a delay of 181 days under Article 227 of the Constitution of India on 11.7.2000. However, this Court dismissed the delay condonation application and consequently dismissed the un-numbered C.R.P.also. 9.The learned counsel for the respondent contended that when the E.A. Filed by the revision petitioner to set aside the sale under Order XXI Rule 90 C.P.C. alleging fraud has been dismissed and confirmed by this Court, it is nolonger open to the revision petitioner to agitate the very same point. In short, according to the counsel, the decision passed by this Court in the un-numbered C.R.P. Will operate as res-judicata. 10.The learned counsel for the revision petitioner on the other hand contended that in the execution petition he had deposited the decree amount even on 22.2.2001 and the decree holder had also withdrawn the money. The property was first sold on 1.7.89 for Rs. 2,00,100/- and subsequently, the sale was set aside. The third sale took place on 21.6.99 for the price of Rs.2,00,200/-. The very same property in question was conveyed by some of the judgment debtors on 18.6.99 and 21.6.99 for a consideration of Rs.17,46,825/-, whereas the market value fixed by the Collector was Rs. 34,52,200/-. If the market value of the unsold portion is also added with the price already covered, the total market value of the property would come to nearly Rs. 39,00,000/-. 34,52,200/-. If the market value of the unsold portion is also added with the price already covered, the total market value of the property would come to nearly Rs. 39,00,000/-. The aforesaid two sale deeds were executed by four out of six judgment debtors and only under such circumstance to establish the plea of fraud, the revision petitioner has filed the application to examine the three persons referred to above. But, unfortunately, it was dismissed by the Court below. 11.The learned counsel for the revision petitioner contended that the Court below committed illegality in conducting the sale on 21.6.99 by selling the property for Rs. 2,00,200/- when it was worth Rupees Thirty Nine Lakhs for the purpose of realising the decree amount of Rs. 72,394/-. The auction purchaser/respondent herein due to fraud played by him on the Court was able to purchase an extent of 31,220 sq.ft for a sum of Rs. 2,00,200/-, whereas the respondent's sister Tmt.Dhanalakshmi, her husband- Naga Pllai and their son Srinivasan had dealt with the property measuring 26,235 sq.ft. And the market value comes to Rs. 34,52,200/-. The Court below went wrong in dismissing the E.A.by holding that it cannot reopen the earlier proceedings in violation of the orders passed by this Court. The presumption is wrong because no order was passed by this Court on merit, but, only on the reason that all the parties were not brought on record. 12.The learned counsel for the respondent relied on (1997) 2 SC 552( GORIE GOURI NAIDU (MINOR) AND ANOTHER V THANDROTHU BODEMMA AND OTHERS )that inter parties judgment rendered by court of competent jurisdiction, even if erroneous, would bind the parties. When in earlier suit, deed of gift of immovable property was declared to be invalid, held that decision would be binding on the donees and it would not be open for them to claim any title in respect of the same property on the ground that in view of a family settlement the opposite party would be estopped from challenging validity of the gift deed. There is no dispute with this principle. But, the applicability of the same depends on the facts of each case. There is no dispute with this principle. But, the applicability of the same depends on the facts of each case. 13.The learned counsel for the revision petitioner relied on (1976) 2 SCR 963 (KOK SINGH V. DEOKABAI) that under Order XLI Rule 33 C.P.C. even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. Under Order XLI, Rule 33 Code of Civil Procedure, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. 14.Reliance is also placed upon 2000 ALL L.J.849 (UNITED INDIA INSURANCE CO.LTD., V. RAJENDRA SINGH)that no Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. 15.The decision held in 1999 (1) L.W. 739 N.BALAKRISHNN V. M.KRISHNAMURTHY that Rules of limitation are not meant to destroy rights of parties. Refusing to condone delay is foreclosing a suitor from putting forth his cause. There is no presumption that the delay in approaching Court is always deliberate. Delay condoned on terms. 16.The decision held in AIR 1984 SC 853 (S.P.CHENGALVARAYA NAIDU V. JAGANNATH)that " A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. "The Principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. .........A judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree by the first court or by the Highest Court has to be treated as a nullity by every court, whether superior or inferior. One who comes to the court must come with clean hands. .........A judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree by the first court or by the Highest Court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 17.It has been held in 2000 (5) SC 66 (DIVYA MANUFACTURING CO.,(P) Ltd., V. UNION BANK OF INDIA AND OTHERS)that "confirmation of the sale by a court at grossly inadequate price, whether or not it is a consequence of any irregularity or fraud in the conduct of sale, could be set aside on the grund that it was not just and proper exercise of judicial discretion." 18.The learned counsel also placed reliance on AIR 1999 SC 3118 (K.MUTHUSWAMI GOUNDER V. N. PALANIAPPA GOUNDER) that no hard and fast rule can be laid down as to the circumstances under which the power can be exercised under O.41 R.33 C.P.C. and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. The generala principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate court must not vary or reverse a decree order in favour of a party who has not preferred any appeal. 19.It is therefore clear from the aforesaid decision and discussion that the Court below ought to have allowed the application filed by the revision petitioner to examine the three persons referred to in the execution application in the interests of justice because it would throw light as to what price thay have conveyed the property even prior to the Court auction. But, at the same time in the Court auction had been sold for a lesser price namely Rs. 2,00,200/-. But, at the same time in the Court auction had been sold for a lesser price namely Rs. 2,00,200/-. Simply because the registered copies of the sale deeds are filed into the Court it could be proper proof and for proving the document it is just and necessary that these three persons have to be summoned and evidence has to be recorded so that an opportunity can be given to the revision petitioner to establish the plea of fraud and the Court can come to the conclusion whether the property was sold for a song or for a reasonable price and other facts. Hence, the points are answered accordingly. 20.For the reasons stated above, the revision petition is allowed and the order passed by the Court below dated 9.8.2001 is set aside and the E.A. No.103/2001 is allowed and the matter is remitted back to the Executing Court, namely, Principal Sub-Court, Tanjavur to issue necessary summons to Tmt. N. Dhanalakshmi, Naga Pillai, and Srinivasan to appear before the Court on the date fixed by the Court for the purpose of producing the original sale deeds bearing document No. 2078 dated 18.6.1999 and No.2593 dated 25.6.99 and give evidence regarding these documents. The Executing Court is directed to dispose of the matter in a period of three months from the date of receipt of a copy of this order. Consequently, C.M.P.No.19004/2002 is closed. No costs.