Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 343 (MAD)

Ramamurthy & Another v. Vatsala Ammal

2005-02-24

M.KARPAGAVINAYAGAM

body2005
Judgment :- Ramamurthy and Thiruselvam, petitioners herein, have filed this Civil Revision Petition, challenging the order passed in E.A.No.177 of 2003 in E.P.No.106 of 2000 in O.S.No.259 of 1997, dismissing the application filed by them under Section 47 of C.P.C., to declare the decree passed in O.S.No.259 of 1997, which was filed by the respondent for damages, as non-est. 2. The facts in brief are as follows: Vatsla Ammal, respondent herein, filed O.S.No.259 of 1997 against the petitioners. The said suit was for damages, claiming a compensation of Rs.30,000/-. Before the said suit was filed, another suit O.S.No.79 of 1994 for permanent injunction was filed, and when the interim injunction passed therein was disobeyed by the petitioners, by causing damage to the fence and the channel, the said suit O.S.No.259 of 1997 was filed for damages. Both the suits, namely, O.S.Nos.79 of 1994 and 259 of 1997 were decreed as against the petitioners. Being aggrieved, petitioners, who were defendants in the suits, filed A.S.Nos.122 of 1999 and 62 of 2001, which were re-numbered as A.S.Nos.8 of 2002 and 101 of 2002 respectively. Ultimately, A.S.No.8 of 2002, relating to O.S.No.79 of 1994, was allowed and A.S.No.101 of 2002, relating to O.S.No.259 of 1997, was dismissed. By virtue of the dismissal of A.S.No.101 of 2002, respondent/plaintiff filed E.P.No.106 of 2000, to recover the sum towards damages. After nearly three years, petitioners/defendants filed E.A.No.177 of 2003 under Section 47 of C.P.C., to declare the decree in O.S.No.259 of 1997 as infructuous, non-est and non-executable, on the ground that already O.S.No.259 of 1997 had become extinguished, in view of the decree passed by the appellate Court in A.S.No.8 of 2002, relating to O.S.No.79 of 1994. The executing Court, accepting the plea of the plaintiff/respondent Vatsala Ammal that the decree passed in O.S.No.79 of 1994 had no bearing to the decree passed in O.S.No.259 of 1997, dismissed the application E.A.No.177 of 2003, filed by the defendants, namely, the petitioners herein. Hence, this Civil Revision Petition, at the instance of the defendants. 3. I have heard the learned counsel for the petitioners and also gone through the records. 4. According to the petitioners, respondent filed O.S.No.79 of 1994 and obtained an interim injunction and since the interim injunction was said to have been disobeyed by them, causing damage to the fence and the channel, respondent filed another suit O.S.No.259 of 1997. 3. I have heard the learned counsel for the petitioners and also gone through the records. 4. According to the petitioners, respondent filed O.S.No.79 of 1994 and obtained an interim injunction and since the interim injunction was said to have been disobeyed by them, causing damage to the fence and the channel, respondent filed another suit O.S.No.259 of 1997. Though both the suits were decreed as against the petitioners by the trial Court, in the appeals, filed by the petitioners, A.S.No.8 of 2002 was allowed, thereby dismissing O.S.No.79 of 1994, and since O.S.No.259 of 1997 was a connected suit, the decree in O.S.No.259 of 1997 became extinguished and, as such, it was non-executable and non-est in law. 5. According to the respondent/plaintiff, the decree passed in O.S.No.79 of 1994, which would relate to the relief of permanent injunction, had no bearing on the decree passed in O.S.No.259 of 1997, which was in respect of the claim for damages, and, as such, the application under Section 47 of C.P.C., was misconceived. The executing Court dismissed the said application, holding that the decree passed in O.S.No.259 of 1997 had become final, in view of the dismissal of A.S.No.101 of 2002. 6. Learned counsel for the petitioners, challenging the said order, would submit, the view taken by the executing Court was wrong, since the original suit O.S.No.79 of 1994 was the basis for another suit O.S.No.259 of 1997, and also as the decree in O.S.No.79 of 1994 was reversed, automatically, the decree passed in O.S.No.259 of 1997 became non-est. 7. I have considered the said submission of the learned counsel for the petitioners. But, I am unable to persuade myself, to accept the said view. 8. The provision of Section 47 of C.P.C. would relate to the questions to be determined by the Court, executing decree. This provision would indicate that all questions arising between the parties to the suit, in which the decree was passed, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court, executing the decree. 9. It is clear from a reading of Section 47 of C.P.C. that the question regarding validity of a decree would not include to the questions to be determined by the Court, executing decree. It is settled law that the validity of a decree cannot be questioned in execution proceedings. 10. 9. It is clear from a reading of Section 47 of C.P.C. that the question regarding validity of a decree would not include to the questions to be determined by the Court, executing decree. It is settled law that the validity of a decree cannot be questioned in execution proceedings. 10. In this case, in the appeals filed by the petitioners before the lower appellate Court against the decrees passed in O.S.Nos.79 of 1994 and 259 of 1997, the lower appellate Court could consider the questions that were raised in both the appeals and dismissed A.S.No.101 of 2002, confirming the decree passed in O.S.No.259 of 1997, and allowed A.S.No.8 of 2002, setting aside the decree passed in O.S.No.79 of 1994. Thus, different questions were formulated in these two appeals and a common judgment was rendered. 11. Before the lower appellate Court, no materials were placed, to show that the decree passed in O.S.No.259 of 1997 was to be set aside, varied or altered. Furthermore, it cannot be contended that the decree passed in O.S.No.79 of 1994 had any bearing to the decree passed in O.S.No.259 of 1997. In other words, the decree passed in O.S.No.79 of 1994 alone was set aside in favour of the petitioners/defendants and, on the other hand, the decree passed in O.S.No.259 of 1997 was confirmed in favour of the respondent/plaintiff by the lower appellate Court, dismissing the appeal filed by the petitioners. 12. Under those circumstances, I am at a loss to understand as to how one could say that the decree passed in O.S.No.259 of 1997 had become non-executable. The executing Court cannot go beyond the decree passed in O.S.No.259 of 1997. As narrated above, the enforceability or validity of a decree could not be decided by way of an application under Section 47 of C.P.C; thereby, the decree passed in O.S.No.259 of 1997 was rightly confirmed by the lower appellate Court, in the appeal filed by the petitioners. 13. Civil Revision Petition is, therefore, devoid of merit and it is dismissed as such. Also, the connected C.M.P.No.1401 of 2005 is dismissed.