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2006 DIGILAW 2950 (MAD)

M. Baskaran, Gudiyatham v. M. Sabathy, Vellore

2006-11-02

R.BANUMATHI

body2006
Judgment : This Civil Revision Petition is directed against theorder dated 4.2.2005 in E. A. No. 226 of 2004 in EP. No. 301 of 2004 in O. S. No. 134 of 1999 passed by the District Munsif, Gudiyatham, Vellore District, dismissing the Petitionfiled under Section 47 C. P. C. The defendant is the revision petitioner. 2. O.S.No.134 of 1999 was filed by the plaintiff for declaration of his title over the suit property and for delivery of possession and for rendition of accounts for the second item of the property. Accordingto the plaintiff, he had put up a construction in the river poromboke and is in possession of the entire 75’ x 25’ river poromboke, which is forming backyard of hishouse in the second item of the property. The defendant resisted the suit contending thatthe Plaintiff being his elder brother has allowed the defendant to construct a house in the suit properties and enjoy the same for himself and the defendant had discharged all the loans of the plaintiff. 3. In consideration of the evidence adduced by the parties, after full trial, the trial Court/Subordinate Court, Vellore decreed the Suit on 25.3.2002 and ordered delivery of possession. As against that Judgment, no appeal has been preferred by the defendant. 4. Alleging that the Decree isinexecutable, the defendant has filed Petition under Section 47 C.P.C According to the defendant, part of Item No. 2 is in river poromboke andthe decree is inexecutable in view of the nonjoinder of necessary party viz., the Government. Observing that the plea of nonjoinder was not taken in the suit stage, the Executing Court dismissed the petition filed under Section 47 C.P.C. Learned District Munsif observed that if really the defendant was aggrieved, the defendant could have preferred the appeal and the validity of the decree cannotbe agitated under Section 47 C.P.C. 5. Assailing the Impugned Order, learned counsel for the revision petitioner/defendant inter alia raised the following contentions: Even in the plaint, the second item of property is stated to consist of an underground and also a building to an extent of 75’ x 25’ in the river porombokeand the Plaintiff prayed for declaration of his title and possession of the building for the second item of the property, which is admittedly a river poromboke. Since the Government was not included as a party, the decree is inexecutable. Since the Government was not included as a party, the decree is inexecutable. The plaintiff has not claimed adverse possession over the poromboke property by claiming to be in possession and enjoyment of the property more than 30 years and the Trial Court did not frame any issue on that point and without adjudicating the adverse possession, the Trial Court erroneously passed the decree declaring the plaintiffs title over the poromboke property. 6. Learned counsel for the respondent/plaintiff submitted that the ground alleged in the application ought to have preferred by way of appeal and the executing Court can not go beyond the decree and the Executing Court has rightly dismissed the Application and there is no reason warrantinginterference. It was further submitted that the plaintiff was then in enjoyment of the property by paying “B” Memo and hence there was no necessity to implead the Government as a party. Learned counsel for the respondent has contended that raising objection regarding the non-framing of the issue would not fall within the scope of Section 47 C.P.C. It was further contended that all the points raised ought to have been agitated by way of appeal and not by way of Section 47 C.P. C. 7. In viewof the rival submissions,the following questions arise for consideration: i. When the Court having jurisdiction over the subject matter passes a decree, can it be resisted at the execution stage by filing application under Section47 C.P.Ce; ii. Whether non-impleading of the Government as a party renders the Decree nullitye 8. Even at the outset, it is to be pointed out that the plaintiff and the defendant are brothers. Item No. 2 is a housefor which there is a backyard measuring 75 × 25 which is the river poromboke. Case of theplaintiff is that he has been enjoying river poromboke as part of item No. 2 by enclosingthe same with compound, wall and paying the land revenue on ‘B’ Memo. According to the plaintiff, the defendant unlawfully commenced his business in Item No. 1 and shifted his business M.N. Agencies to Item No. 2 of the plaint schedule property in November 1990. 9. According to the plaintiff, the defendant unlawfully commenced his business in Item No. 1 and shifted his business M.N. Agencies to Item No. 2 of the plaint schedule property in November 1990. 9. Thedefendant hotly contested the suit by raising the plea that the plaintiff was heavily indebted and the plaintiffwas asked the defendant to discharge the loans and take the suit properties and in order to help the plaintiff, the defendant has discharged the Plaintiffs loans and pursuant to the permission, the defendant has constructed the house in the suit properties and has been in enjoyment of the same for himself. According to the defendant, he has constructed the house in the suit properties and after completion of the house work, the plaintiff has come forward with the vexatious suit and the plaintiff is not entitled for delivery of possession. 10. The rival contentions ofboth parties were adjudicated and after full trial, decree of declaration of title and delivery of possession was passed on 25.3.2003. As against the Judgment and decree, the defendant has not chosen to file any appeal. 11. When the Execution Petition was filed, the defendant by filing a Petition under Section 47 C. P. C raised a point that the decree is inexecutable and nullity since the Government was not made as a party. The plea of non-joinder of necessary party was not at all raised in the written statement. As per Order 1, Rule 13 C.P.C., objection as to the non-joinder or mis-joinder must be taken at the earliest possible opportunity. It is the duty of the party to raise the objection of non-joinder in the Written Statement at the earliest point of time. In fact, even in the trial stage, objection regarding non-joinder or mis-joinder cannot be entertained after framing of the issues. The objection regarding non-joinder of Government raised in the execution stage has no force much less to render the decree inexecutable. 12. The conditions necessaryfor application of Section 47 C.P.C. are: i. the question must relate to the execution, discharge or satisfaction of the decree; ii. it must arise between the parties to the suit in which the decree was passed or their representatives. 13. 12. The conditions necessaryfor application of Section 47 C.P.C. are: i. the question must relate to the execution, discharge or satisfaction of the decree; ii. it must arise between the parties to the suit in which the decree was passed or their representatives. 13. The Executing Court cannot go beyond the decree unless it is shown that the decree was passed by a Court having lack of jurisdiction, which would make it nullity the powers of the Court under Section 47 C.P.C. are quite different and are narrower that it power of Appeal,Revision or Review. The scope of Section 47 has been elaborately considered by the supreme Court in the decision Dhurandhar Prasad Singh v. Jai Prakash University Dhurandhar Prasad Singh v. Jai Prakash University Dhurandhar Prasad Singh v. Jai Prakash University AIR 2000 SC 2552 : (2001) 6 SCC 534 wherein the supreme Court has held as under: “23…… The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole.. Thus, it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same isvoid ab initio and nullity, apart from the ground that decreeis not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after itspassing….” 14. In the present case, though part of Item No. 2, measuring an extent of 75’ x 25’ is the Government Poromboke, rightly or wrongly, the Decree was passed declaring the plaintiffs title. Without Government being a party to the suit, the Court ought not to have declared the Plaintiffs title. But such technical flaw would not render the decree nullity so as to invoke the application of Section 47 C.P. C. The validity or otherwise of a decree could be challenged only by filing a regular appeal. 15. The Execution Court cannot go beyond the decree and consider its correctness or validity except when it is passedby a Court without jurisdiction. Non-joinder of parties is a mixed question of law and the fact and the same cannot be raised for the first time in the Execution Proceedings. 15. The Execution Court cannot go beyond the decree and consider its correctness or validity except when it is passedby a Court without jurisdiction. Non-joinder of parties is a mixed question of law and the fact and the same cannot be raised for the first time in the Execution Proceedings. In the decision reported in K. P. Antony v. Thandiyode Plantations (P) Ltd. AIR 1996 Ker 37 , a Full Bench of Kerala High Court has held: “… It will not be open to a party to challenge the judgment when it is sought to be enforced on the ground that the Judgment is based on wrong conclusion or erroneous findings or on wrong application of law.,..” 16. On behalf of the defendant, it is contended that the plaintiff has not raised the plea of adverse possession nor raised the plea that he was in possession of the second item of the property for more than 30 years and in the absence of such plea, the Trial Court ought to have passed the decree declaring the plaintiffs title. This contention does not merit acceptance. When the decree was passed by the Court of competent jurisdiction, the same cannot be re-examined by the Executing Court and the Decree has to be executed as it stands. Whiledealing with the power of the Executing Court, a Full Bench of this Court in the decisionreported in Mohan Ram v. T.L. Sundararamier Mohan Ram v. T.L. Sundararamier Mohan Ram v. T.L. Sundararamier AIR 1960 Mad 377 has held: “…. The power of the Executing Court to go behind the decree, because it is opposed to public policy and also offends a statutory prohibition, is upon another plane altogether. It must be carefully delimited and no executing Court can launch into what is virtually a fresh trial, because of mere allegations, or of further new material claimed to be available. To stir the conscience of the Court, material on the same footing,as the decree itself, and equally evident and indisputable, must show that the land is inalienable, and that the sale offends public policy and law.” 17. To consider the points now raised by the defendant would virtually amount to a new trial, which is not permissible under law. 18. To stir the conscience of the Court, material on the same footing,as the decree itself, and equally evident and indisputable, must show that the land is inalienable, and that the sale offends public policy and law.” 17. To consider the points now raised by the defendant would virtually amount to a new trial, which is not permissible under law. 18. Contending that the Executing Court has the powers to hold an enquiry and to find out the true effect of the decree) learned counsel for the revision petitioner/defendant has relied upon the decision Mahaboova Beevi v. Nataraja Chettiar 1995 (1) CTC 224 . In the said case, the question arose as to the identity of the property. Inthat context, the Court has observed that when the identity of the property to be delivered is the subject matter of an enquiry in the Executing Court, only the Executing Court has the powers to enquire into the identity of the property. In that context, the Court has observed that the Executing Court has the power to hold an enquiry to find out the trueeffect of the decree. That decision is not applicable to the factual aspects of the case on hand. 19. The judgment and Decree in O. S. No. 134 of 1999 between the parties is binding on the parties. The revision petitioner cannot be allowed to reagitate the matter in the execution proceedings that too after leaving the decree to become final. The failure to file any appeal and raise such an objection at the early point of time precludes the revision petitioner from raising the plea of nonjoinder and other points at the execution stage. 20. The contentions raised by the parties were properly considered by the learned District Munsif and the Impugned Order does not suffer from any error of law or serious infirmity calling for interference. 21. For the foregoing reasons, this civil revision petition is dismissed. No costs. Consequently, the connected C.M.P. No. 10778 of 2005 is closed.