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2004 DIGILAW 712 (MAD)

Lalchand Menghraj v. S. V. Mathaprasad

2004-04-27

K.GOVINDARAJAN, N.KANNADASAN

body2004
Judgment :- K. GOVINDARAJAN, J. 1. Aggrieved by the common order dated 8.12.2003, passed by the learned Judge in Applications in A. Nos. 2154 to 2156 of 2003, the appellants have preferred the above appeals. 2. Thiru Ramakrishna Mudaliar, the owner of the suit properties executed sale deeds dated 26.3.1959 and 31.3.1959 in favour of Mrs. Rajaby Fathima Buhari, hereinafter called Mrs. Buhari. But, according to Ramakrishna Mudaliar, there was an understanding between him and Mr. Buhari, the husband of Mrs. Buhari to the effect that in case the purchase amounts as per the sale deeds were repaid within three years, the properties would be reconveyed on payment of 10% in addition to sale price, solatium of actual amount spent on improvement if any. The said understanding was also recorded subsequently on 24.3.1959 in writing. In May 1960, one of the properties sold to Mrs. Buhari was reconveyed to S.V. Ramakrishna Mudaliar, but failed to reconvey the suit properties. 3. So, the said S.V. Ramakrishna Mudaliar and his son Madtha Prasad through his 1st wife, filed a suit in C.S. No. 43 of 1962 for specific performance of the agreement of reconveyance, dated 24.3.1959. The said suit was decreed on 10.11.1965. Mr. Buhari and his wife Mrs. Buhari filed independent appeals in O.S.A. Nos. 8 and 9 of 1966 challenging the said decree. The Division Bench allowed the said appeals in the judgment dated 13.5.1972, by setting aside the decree passed in C.S. No. 43/1962. S.V. Ramakrishna Mudaliar alone preferred appeal in S.L.P. No. 2689/1973. Leave was granted and appeal was numbered as C.A. No. 224/1974. His son Matha Prasad who is also a plaintiff in C.S. No. 43/1962 did not prefer any appeal in view of certain disputes between Ramakrishna Mudaliar and Matha Prasad. Mrs. Buhari died on 17.12.1980 and S.V. Ramakrishna Mudaliar also died on 31.12.1980. His children through the 2nd wife (S.V.R. Saroja, S.V.R. Vijaya, S.V.R. Rama Prasad and S.V.R. Renuka Devi) were brought on record in C.A. No. 224/1974 by filing C.M.P. No. 7242/1981. The legal representatives of Mrs. Buhari were also brought on record by filing C.M.P. No. 5191/1982. The 2nd plaintiff, Matha Prasad was impleaded as third respondent in the said Civil Appeal. 4. The legal representatives of Mrs. Buhari were also brought on record by filing C.M.P. No. 5191/1982. The 2nd plaintiff, Matha Prasad was impleaded as third respondent in the said Civil Appeal. 4. Meanwhile, S.V. Matha Prasad, son of S.V. Ramakrishna Mudaliar who is the 2nd plaintiff in the suit assigned all his right, title and interest and the right to obtain re-conveyance of the properties (suit properties) for a consideration of a sum of Rs. 2,00,000/- by executing a registered document dated 7.9.1988. Similarly, on 7.9.1988, 31.10.1988, 2.11.1988, 2.11.1988 and 2.11.1988, the daughters of Ramakrishna Mudaliar, namely, S.V.R. Lalitha, S.V.R. Renuka Devi, S.V.R. Vijaya, S.V.R. Saroja and S.V.R. Dhanurmathi, and S.V.R. Rama Prasad executed similar assignment deeds in favour of the appellants herein. Among the above assignors, S.V.R. Renuka Devi, S.V.R. Vijaya, S.V.R. Rama Prasad and S.V.R. Saroja are the appellants before the Apex Court. The appellants filed I.A. No. 1/1994 to implead them as parties to the said appeal. The Apex Court in the judgment dated 17.4.1995 (reported in 1995(4) SCC 15 ) allowed the appeal, set aside the judgment of the Division Bench and restored the decree of the tr ial court for specific performance. It is also directed the respondents who are the successors-in-interest to reconvey the properties mentioned in the schedule ‘A’ of the plaint within a period of one month, failing which it would be open to the trial Judge to execute the required documents. With respect to the claim of the appellants to implead them as parties, the Apex Court dismissed the same, as the appeal itself was disposed of on merits as no reason was assigned. The respondents/defendants preferred Review Application in Review Petition No. 1418/1995 on 12.5.1995. The same was dismissed on 1.11.1995. 5. Mr. S.V. Matha Prasad alone filed E.P. No. 48/1997 impleading only the legal representatives of Mrs. Buhari. It is relevant to mention here that he has not impleaded even the assignees and also other legal heirs of Ramakrishna Mudaliar. The appellants (assignees) filed Application No. 2005 and 2006 of 1998 to implead them as parties in E.P. No. 48/1997 and to reopen E.P. No. 48/1997. Buhari. It is relevant to mention here that he has not impleaded even the assignees and also other legal heirs of Ramakrishna Mudaliar. The appellants (assignees) filed Application No. 2005 and 2006 of 1998 to implead them as parties in E.P. No. 48/1997 and to reopen E.P. No. 48/1997. The learned Master in the order dated 19.4.1999 issued notice to other six legal representatives of S.V. Ramakrishna Mudaliar through court and by RPAD returnable in four weeks and also directed Mathaprasad to take steps to serve notice on the other six legal heirs of deceased father, in E.P. No. 48/1997 and the appellants herein are further directed to file assignment deeds executed by the legal representatives of S.V. Ramakrishna Mudaliar into court. The learned Master directed to post the applications and the E.P. On 10.6.1999. 6. Mathaprasad also filed appeals in A. Nos. 1106 to 1108 of 2000 to set aside common order of the learned Master dated 19.4.1999 and also to stay the proceedings before the learned Master. The learned Judge while disposing of the Applications in the common order dated 3.7.2000, set aside the order passed by the learned Master dated 19.4.1999, by dismissing the Applications filed by the appellants. But no notice was served as the appellants and counsels name did not appear in the cause list and so neither the appellants nor their counsel had opportunity to put forth their case though the appeal was filed against the order of the learned Master dated 19.4.1999 passed at the instance of the appellants. 7. On 7.7.2000, pursuant to the direction given by the learned Judge to deliver possession to the 1st respondent (Mathaprasad) forthwith without further delay, the learned Master directed the judgment-debtors to execute reconveyance for the properties in favour of the Mathaprasad alone within one month from the date of the above order. The claim of other legal representatives was not at all considered by the court. 8. So the other legal representatives of S.V. Ramakrishna Mudaliar who were the appellants before the apex court filed Application No. 2871 to 2873 of 2000 against the order of the learned Master dated 7.7.2000. The claim of other legal representatives was not at all considered by the court. 8. So the other legal representatives of S.V. Ramakrishna Mudaliar who were the appellants before the apex court filed Application No. 2871 to 2873 of 2000 against the order of the learned Master dated 7.7.2000. The learned Judge modified the order of the learned Master holding that the said applicants being decree holders along with Mathaprasad are entitled to get reconveyance of the property and dispute, if any, between the petitioners therein and Mathaprasad relating to their respective shares in the property to be left open to be decided separately. Even against that order, Mathaprasad preferred appeal in O.S.A. No. 372/2000. The Division Bench confirmed the judgment of the learned Judge accepting the rights of other legal representatives. Even the S.L.P. Preferred against the said judgment was dismissed on 17.4.2003 clarifying that if any suit is filed interse, the contending claimants to the ownership of the suit property, then the question of ownership, the number of owners and the extent of share should be decided in that suit only. 9. After coming to know of the proceedings, the appellants filed Application Nos. 2154 to 2156 of 2003 to condone the delay of 971 days in filing the Application to set aside the ex-parte common order dated 3.7.2000, in Application Nos. 1106 to 1108 of 2000. The said Applications were dismissed by the learned Judge in the order dated 8.12.2003. Hence the above appeals. 10. Learned Senior Counsel appearing for the appellants submitted that the appellants also now filed E.P. No. 21/2004 to execute the decree exercising their rights under the assignment deeds, and the same is pending. Learned Senior Counsel further submitted that in view of the assignment which was approved by the Apex Court, they have to be treated as representatives of the decree-holder and so they are entitled to file such an execution petition, in view of Sec. 146 and Order 21, Rule 16 of the Code of Civil Procedure. Even if there is any dispute with respect to their entitlement, the same can be determined in the said execution petition as contemplated under Sec. 47 of the Code. Even if there is any dispute with respect to their entitlement, the same can be determined in the said execution petition as contemplated under Sec. 47 of the Code. So, even the issue raised in this Appeal can also be directed to be decided in the execution petition, after adducing evidence and filing documents, as the orders impugned are passed in the applications only on the basis of the affidavits and counter affidavits. Learned Senior Counsel appearing for the appellants further submitted that the learned Judge is not correct in rejecting the petition to condone the delay in filing the application, though the reasons for the delay has been properly explained. 11. On the other hand, learned Senior Counsel appearing for the 1st respondent submitted that Sec. 47 of the Code cannot be made applicable to the facts of the case to decide the issue in Execution Petition as suggested by the learned Senior Counsel appearing for the appellants and when the application to implead the parties filed by the appellants was dismissed, they have no locus standi to participate in the proceedings taken by the 1st respondent and so the learned Judge rightly rejected the applications. 12. The point for consideration in these appeals are:— (1) Whether the appellants have properly explained the delay? (2) Whether the appellants are entitled to canvas their case on merits in Application Nos. 1106 to 1108 of 2000 before the learned Judge? 13. Since the entire facts have been set out earlier, we are not reiterating the same again, except extracting the relevant portion of the judgment of the Apex Court with respect to the assignment in favour of the appellants, as the decree-holders have become entitled to execute the decree for reconveyance only on the basis of the decision of the Apex Court which is also reported in S.V.R. Mudaliar v. Rajabu F. Buhari , 1995(4) SCC 15 = 1996-1-L.W. 55. In the said decision, the Apex Court had dealt with the rights of the assignees and held as follows:— “28. The final onslaught is on the ground that the plaintiffs successors-in-interest having assigned the right to third parties in the meantime, we may not grant the relief because the assignees have, as already noted, purchased litigation and so the transaction could be described as champertous. The final onslaught is on the ground that the plaintiffs successors-in-interest having assigned the right to third parties in the meantime, we may not grant the relief because the assignees have, as already noted, purchased litigation and so the transaction could be described as champertous. Shri Parasaran, however, contends that all assignments pendente lite cannot be regarded as champertous; the same would depend on the facts of each case. It is also urged that an assignee has the right to pray for specific performance because he is one who has to be regarded as “representative-in-interest’, of which mention has been made in clause (b) of Section 15 of the aforesaid Act dealing with the persons who may obtain specific performance. That an assignee would be such a person was accepted by this Court in T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao, (1993)2 SCC 740 . 29. We are of the view that if in a case the act of the third party could be regarded akin to champertous, the relief of specific performance may be refused; indeed, should be refused. In the present case, however, we find that the assignees themselves applied to this Court for impleading them as appellants and put on record the deeds of assignment, a perusal of which shows that the need for assignment was felt for pressing reasons. There has been no hide and seek with the court and the legal representatives of the original plaintiff having received a sum of about Rs. 13 lakhs pursuant to the contract of assignments entered between September to November 1988, we do not think it we would be justified in refusing the relief of specific performance if the conduct of the respondents is also borne in mind, about which one could say that the same is tainted in as much as they departed from truth to bolster their case and went to the extent of not complying with the desire of the trial Judge in allowing aforesaid Kamal to be examined even as a court witness. Such parties who play foul with equity cannot be allowed to use the shield of equity to protect them.” 14. Such parties who play foul with equity cannot be allowed to use the shield of equity to protect them.” 14. From the above it is clear that the ground taken on behalf of the respondents that the plaintiffs successors-in-interest have assigned the rights to third parties pending litigation and so they cannot sustain the suit for specific performance, the Apex Court rejected the same taking into consideration the genuineness of the assignment. 15. While considering the argument that assignment is a right to pray for specific performance and as he is one who has to be regarded as representative-in-interest as contemplated under clause (b) of Sec. 15 of the Specific Relief Act, the said argument was accepted on the basis of the decision in T.M. Balakrishna Mudaliar v. M. Satyanarayana Rao, 1993(2) SCC 740 = 1993-2-L.W. 9. While doing so, the Apex Court found that only in the case of an act of third party could be regarded akin to champertous, the relief of specific performance should be refused. The Apex Court found that that is not the situation in the present case. So it cannot be said that the appellants are not having any interest in the properties. This can be justified in view of the clauses in the assignment deeds, which are as follows:— “24. WHEREAS the Assignor aware of the repurcussions likely to result by the success or failure in the Civil appeal No. 224 of 1974 and not being willing to take his chances in the said appeal has thought it prudent to ASSIGN all his right, title and interest in the fight to obtain reconveyance of the properties described in Schedule ‘A’ and ‘B’ hereunder and his right, title and interest in the monies described in Schedule ‘C’ hereunder for valuable consideration; 25. WHEREAS the Assignor had offered to the Assignees to Assign all his right, title and interest in the right to obtain reconveyance of the properties described in Schedule ‘A’ and ‘B’ hereunder and his right, title and interest in the monies described in Schedule ‘C’ hereunder unto and in favour of the Assignees for a consideration of Rs. 2,00,000/- (Rupees Two lakhs only). 26. 2,00,000/- (Rupees Two lakhs only). 26. WHEREAS the Assignees agreed with the Assignor to obtain assignment of the Assignors right, title and interest in the right to obtain recoveyance of the properties described in schedule ‘A’ and ‘B’ hereunder and the Assignors right, title and interest in the monies described in schedule ‘C’ hereunder paying the Assignor the consieration aforesaid; 27. In pursuance of the agreement aforesaid, the covenants contained herein and in consideration of the sum of Rs. 2,00,000/- (Rupees Two lakhs only) paid by the Assignees the Assignor before the execution of these presents, receipt of which sum the Assignor doth hereby admit and acknowledge, the Assignor doth hereby ‘TRANSFER’ by ‘ASSIGNMENT’ unto and in favour of the ASSIGNEES all the ASSIGNORs right, title and interest in the right to obtain reconveyance of the properties described in schedules ‘A’ and ‘B’ hereunder, secured under the document titled ‘Record of Fact’ and dated 24th March 1959 and the Assignors right, title and interest in the monies described in schedule ‘C’ hereunder for the Assignees “TO HAVE AND TO HOLD” the same absolutely and forever”. 16. Having transferred the right to execute the decree under the document dated 7.9.1988. the 1st respondent/Mathaprasad filed the execution petition without even impleading the other heirs and tried to obtain the orders behind the back of the appellants. He also filed applications in A. Nos. 1106 to 1108 of 2000 suppressing all the relevant facts. That is why the learned Master in the order dated 19.4.1999 directed the 1st respondent/Mathaprasad, to issue notice to the other legal heirs with a view to give an opportunity to them and the appellants. When the Apex Court has recognised the assignment regarding its validity, under which the decree to be passed by the Apex Court was assigned in favour of the appellants, the appellants also should have been heard, especially when the order of the learned Master, against which appeal was filed, was passed at the instance of the appellants. Otherwise their valuable right got under the assignment deeds will be defeated. We are constrained to deal with the maintainability and sustainability of the petition to set aside ex-parte order as the learned Judge has dealt with and found on merits that it is not sustainable. 17. The learned Judge failed to appreciate that the appellants counsel name was not printed when the Applications in A. Nos. We are constrained to deal with the maintainability and sustainability of the petition to set aside ex-parte order as the learned Judge has dealt with and found on merits that it is not sustainable. 17. The learned Judge failed to appreciate that the appellants counsel name was not printed when the Applications in A. Nos. 1106 to 1108 of 2000 were heard and disposed of. The appellants filed an affidavit specifically saying that Application Nos. 1106 to 1107 of 2000 were filed to set aside the order of the learned Master dated 19.4.1999 and got orders behind the back of the assignees. In view of the fact that the appellants were unhappy with their previous counsel, they changed the counsel. Only after verification of the records by the present counsel, they came to know about the order passed on 3.7.2000 and immediately the application was filed on 20.2.2003 and received the same on 5.3.2003. It is also specifically stated that the previous counsel informed the present counsel that no notice in Application Nos. 1106 to 1108 of 2000 was served on their counsel. So, for want of knowledge about the disposal of Application Nos. 1106 to 1108 of 2000, on 3.7.2000, the appellants could not file application against the said order in time. Since they were not served with any notice, they filed the application to set aside the said order treating the same as ex-parte order. 18. The learned Judge rejected the application to condone the delay mainly on the ground that the appellants are having remedy to enforce the assignment in the property according to law. The learned Judge also found that the appellants have to file appeal and not petition to set aside the order of the learned Judge. The valuable right of the appellants under the assignment cannot be ignored especially when they got the order from the learned Master which was sought to be set aside before the learned Judge by the 1st respondent/Mathaprasad without even serving the notice on the appellants. When such a plea was raised, the rights of the appellants to canvass their case cannot be rejected stating that the appeal remedy is available. The learned Judge while passing the order in A. Nos. When such a plea was raised, the rights of the appellants to canvass their case cannot be rejected stating that the appeal remedy is available. The learned Judge while passing the order in A. Nos. 1106 to 1108 of 2000 has not even verified as to whether the appellants were served with the notice and opportunity was given to them though the order challenged before the learned Judge was passed at their instance. The learned Judge has passed the order only on 3.7.2000 after hearing the counsel for the decree-holder and the judgment-debtors. 19. In para 11 of the order, the learned Judge dealt with delay. The learned Judge failed to appreciate that immediately after the knowledge of the order passed in A. Nos. 1106 to 1108 of 2000, the appellants filed application for copy of the order on 20.2.2003 and after receiving the same on 5.3.2003 they filed the Applications in question. The learned Judge has not appreciated the reasons properly. The order was obtained behind the back of the appellants, though the said order was passed, by the learned Master only at the instance of the appellants. The learned Judge has not at all gone into the said question and also not considered the fact that the name of the counsel has not been printed in the cause list at least. The learned Judge failed to appreciate that there is no negligence or want of bonafide or inaction on the part of the appellants. But the appellants have made out sufficient cause to condone the delay. 20. The apex court has taken a view that the petition to condone the delay has to be considered liberally. While considering the scope of consideration of the application filed udner Sec. 5 of the Limitation Act, the apex court in the decision in Ramlal v. Rewa Coalfields Ltd. , AIR1962 S.C. 361, held as follows:— “7. The other consideration which cannot be ignored is that of sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. The other consideration which cannot be ignored is that of sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269, “Section 5 gives the Court a discretion which in respect of, jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.” 21. Since the learned Senior Counsel on both sides argued with respect to the scope of Sec. 47 of the Code, we are inclined to deal with the same also. Though this Court put a question to the learned Senior Counsel for the decree-holder that the same could be left open to be decided in the Execution Petition, the learned Senior Counsel argued the same, with a request to give a finding regarding the right of the appellants claiming as representatives of the owners. In view of the above discussion, it is clear that the right to execute the decree has been assigned and the same was approved by the Apex Court. 22. While considering the scope of Sec. 47 of the Code, the Apex Court in the decision in Gangabai Gopaldas Mohata v. Fulchand , AIR 1997 S.C. 1812 , held as follows:— “Even a transferee pendente lite is representative of his transferor within the meaning of sub-section (3) of Section 47. One who claims to be transferee by operation of law would as well be a representative and if his claim to be a representative is disputed either by the opposite party or by the party under whom he claims, such dispute must also be resolved by the executing Court itself. The word “representative” used in Section 47 is obviously much wider than the words “legal representative” as used in Section 50 of the Code.” 23. The word “representative” used in Section 47 is obviously much wider than the words “legal representative” as used in Section 50 of the Code.” 23. In the resent decision of the Apex Court reported in Raj Kumar v. Sardari Lal , 2004 AIR SCW 470, the apex court also appreciated similar facts and held that such assignee should be regarded as representative of the decree holder within the meaning of Sec. 47 of the Code and further held as follows:— “11. In Sm. Saila Bala Dassis case (supra) an earlier decision of this Court in Jugalkishore Saraf v. Cotton Co. Ltd. (1955) 1 SCR 1369 was followed. It was a case where during the pendency of a suit for recovery of a debt from the defendant the plaintiff in that suit had transferred to a third person all the book and other debts. This Court held that the position of the transferor, vis-a-vis the transferee is nothing more than that of a benamidar for the latter and when the decree is passed for the recovery of that debt it is the latter who is the real owner of the decree. When the transferee becomes the owner of the decree immediately on its passing, he must, in relation to the decree, be also regarded as person claiming under the transferor. The transferee is entitled under Section 146 to make an application for execution which the original decree-holder could do. The executing Court can apply its mind to the simple equitable principle which operates to transfer the beneficent interest in the after-acquired decree under Section 146. As the assignee from the plaintiff of the debt which was the entire subject-matte r of the suit the transferee was entitled to be brought on record under Order 22, Rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 of the CPC.” In view of the above decisions of the apex court and also the assignment deed, the appellants have to be treated as representatives of the decree holder within the meaning of Sec. 47 of the Code, as the right to enforce the decree obtained by the decree holder had already been passed. 24. In view of the above discussions, the common order dated 8.12.2003 passed by the learned Judge cannot be sustained and the same is set aside and Application Nos. 24. In view of the above discussions, the common order dated 8.12.2003 passed by the learned Judge cannot be sustained and the same is set aside and Application Nos. 2154 to 2156 of 2003 are ordered as the delay has been properly explained. Accordingly, these appeals are allowed. No costs.