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2005 DIGILAW 1294 (MAD)

Meenakshi v. Murugan

2005-08-08

M.THANIKACHALAM

body2005
Judgment : 1. The wife of the judgment-debtor, in O.S. No. 121 of 1978 on the file of the Principal District Munsif’s Court, Nagercoil, having failed in her attempt to resist the delivery petition filed by the auction purchaser/ respondent in E.A. No. 180 of 2002, is the revision petitioner. 2. In the year 1978, the plaintiff in O.S. No. 121 of 1978, has filed the suit against one Rajappan and obtained a preliminary decree for recovery of money, based on a mortgage, on 22.1.1979, followed by final decree on 23.8.1979. Pursuant to the decree, the decree holder, by filing E.P. No. 243 of 1981, brought the property of the judgment-debtor for sale, in which the respondent herein participated and purchased the property in the Court auction sale, held on 13.11.1980, which was confirmed on 6.3.1982, followed by the issuance of sale certificate on 18.6.1982. As submitted before this Court, the son of the judgment-debtor filed a suit for partition, in the property sold in the Court auction, in O.S. No. 840 of 1980, including the auction purchaser also as a party, on the file of the Additional District Munsif’s Court, Nagercoil. The said suit was dismissed by the learned Additional District Munsif, Nagercoil, but on challenge before the Sub- Court, Nagercoil, in A.S. No. 153 of 1982, a decree was gra nted, by allowing the appeal, which was challenged in S.A. No. 1354 of 1983 on the file of this Court. This Court, as per the judgment dated 4.3.1998, set aside the decree granted by the first appellate Court, restoring the judgment of the trial Court, in dismissing the suit, thereby confirming the sale and the consequential proceedings. 3. After the disposal of the said suit, which reached finality, the respondent/auction purchaser had filed E.A. No. 38 of 2000 for delivery of property, impleading the heirs of original judgment-debtor, since he died. In view of the dismissal of the previous suit filed by the son of. the judgment-debtor, the Legal Representatives of the judgment-debtor cannot have any valid objection for the delivery of the property. In view of the dismissal of the previous suit filed by the son of. the judgment-debtor, the Legal Representatives of the judgment-debtor cannot have any valid objection for the delivery of the property. However, the revision petitioner, has filed E.A. No. 180 of 2002, invoking Section 47 of the Code of Civil Procedure Code, as if the auction purchaser is not entitled to take actual delivery of the property, because of the legal position, available in Section 23 of the Hindu Succession Act, that the property being a dwelling house, she is having a right of residence as the widow of late Rajappa and in this view, if at all, only a symbolic delivery could be ordered, not actual delivery. 4. The respondent herein, reiterating the proceedings, which took place between the parties, opposed the application, by filing a detailed counter. 5. The Executing Court, considering the claim of the revision petitioner, who is the widow of the judgment-debtor, her conduct in filing the previous application, as well as the earlier suit filed by the son of the judgment-debtor, came to the conclusion that the present application is barred and she is not entitled to resist the application for delivery, thus, dismissed the application in E.A. No. 180 of 2002 with costs on 18.7.2002, which is under challenge in this revision. 6. Heard both. 7. The learned counsel for the revision petitioner submitted that the property, sought to be taken delivery by the auction purchaser, being a dwelling house of the judgment-debtor, the petitioner being the widow of the judgment-debtor, she is entitled to the right of residence under Section 23 of the Hindu Succession Act, and therefore, the question of actual delivery sought for by the auction purchaser, should be negatived and if at all, allowing her to be in possession, symbolic delivery alone could be ordered. 8. 8. Responding to the above submissions, the learned counsel for the auction purchaser/respondent submitted that the son of the judgment-debtor had already failed to get a division in the suit property, claiming as the family property, that this petitioner, herself, already filed a petition for the same relief, which was dismissed, and therefore, she is not entitled to agitate the same right by filing another application and in this view, the petition is devoid of merits, which is aimed to drag on the proceedings forever and therefore, the same is liable to be dismissed with costs. 9. The admitted position, as well as the records available before the Court, would suggest that the submissions made by the learned counsel for the respondent should be accepted. Section 23 of the Hindu Succession Act makes a special provision in respect of a dwelling house where male and female heirs specified in Clause (1) of the Schedule are entitled to some interest, when question of partition of dwelling house arises. In view of the above said provision, if the ingredients required are, made out, then only, the widow of the judgment-debtor can claim protection and not otherwise. On the other hand, if the property was the separate property of the judgment-debtor, when the same had been brought for sale and sold, the widow of the judgment-debtor cannot claim the right of residence, under the above said Section. But, in the case on hand, no such situation is prevailing, because of the fact, the claim for partition, by the son of the judgment-debtor, was negatived and the further fact being, the entire interest in the house of the judgment-debtor, was already sold in Court auction, which would indicate, no question of division arises. Not only that, by the conduct of the petitioner, it should be held, she had lost the right, if any, to seek residence during her lifetime, resisting the actual delivery. Therefore, invoking Section 23 of the Hindu Succession Act may not be available to the revision petitioner. Even if it is available, on the basis of the facts established, at present, the revision petitioner is not entitled to invoke the same. 10. Therefore, invoking Section 23 of the Hindu Succession Act may not be available to the revision petitioner. Even if it is available, on the basis of the facts established, at present, the revision petitioner is not entitled to invoke the same. 10. It is an admitted position that the same revision petitioner had filed E.A. No. 294 of 1981 contending that the judgment-debtor had only 1/4th share in the property, in which she is entitled to reside along with her unmarried daughters. That petition, after contest, was dismissed on 6.3.1992, as recorded by the trial Court, not challenged. The revision petitioner, by the dismissal of the said E.A., admittedly, has not challenged the same before the higher forum and in this way, that dismissal order also reached finality. Therefore, as rightly submitted by the learned counsel for the respondent/ auction purchaser, placing reliance upon a decision of the Apex Court in R.P.A. Valliammal v. R. Palanichami Nadar and others, 1997 (2) CTC 235 : AIR 1997 SC 1996 , ‘ an objection to the execution of a decree can be made only once and not repeatedly’, which dictum is squarely applicable to the present case, because of the admitted position. Therefore, it should be held, unhesitatingly as did by the lower Court, that the present petition, raising the same objection, is also not maintainable, barred by the previous decision. 11. This Court, had an occasion to consider the effect of Section 47 of the Code of Civil Procedure in A.V. Hanifa v. Salima Bhanu, 1991 (2) MLJ 325 , wherein it is held: “When the Section refers to all questions, it only means all questions which were not raised in his 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.” 12. 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.” 12. This principle also applicable to the present case, because of the previous suit filed by the son of the judgment-debtor for partition and on which basis, this petitioner also claimed right of residence in l/4th share of judgment-debtor, in the property sold, as if the heirs of the judgment-debtor are entitled to a share. As adverted, to above, the claim of the son of the judgment-debtor for the division of the property wag negatived, wherein also, the same kind of plea has, been taken. Thus, it is seen, all the questions, which can be decided under Section 47, C.P.C., are already raised and decided by the Court, and therefore, raising the same grounds once again, by filing another application, is frivolous in nature and the same is liable to be dismissed, which was rightly done by the trial Court. 13. It is the duty of the Executing Court to order delivery of possession of the property purchased by the auction purchaser and the Executing Court has no jurisdiction to change the property or order symbolic possession, instead of actual delivery on the basis of the right claimed by the revision petitioner, since that right had already been negatived by the Court. 14. The trial Court, considering all these facts and circumstances of the case, as well as the conduct of the revision petitioner and her failure in the previous proceedings, came to an unerring conclusion that the petition filed under Section 47, C.P.C. is not maintainable, which should receive the approval of this Court, thereby it receives the same, warranting dismissal of the civil revision petition. In the result, this Civil Revision Petition is dismissed with costs.