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2006 DIGILAW 3465 (MAD)

Jayachandran v. Thambi Reddy & Another

2006-12-14

R.BANUMATHI

body2006
Judgment :- (Civil Revision Petition filed under Section 115 C.P.C against the order dated 15.09.2000 of the District Munsif, Dharmapuri in R.E.A.No.51/99 in R.E.P.No.42 of 1997 in O.S.No.57 of 1992, as stated therein.) This Civil Revision Petition is preferred against the order dated 15.09.2000 passed by the District Munsif, Dharmapuri in R.E.A.No.51/99 in R.E.P.No.42 of 1997 in O.S.No.57 of 1992, dismissing the Petitioner's Application for raising the order of Attachment. 2. Relevant facts which led to the Revision Petition are as follows:- The Petitioner is the son of the Second Respondent. First Respondent is the Father of Second Respondent and Grandfather of the Petitioner. First Respondent filed a suit in O.S.No.57 of 1992 on a Promissory Note. The Second Respondent has hotly contested the matter and the Suit was decreed on 05.08.1992. As against the Judgment and Decree, the Second Respondent preferred Appeal in A.S.No.53 of 1993, which was dismissed on 13.01.1995, confirming the Judgment and Decree of the Trial Court. 3. For recovery of the amount, the First Respondent / Decree Holder has filed E.P.No.125 of 1993 and the same was dismissed since the Appeal was pending at that time. The Decree Holder has filed E.P.No.96 of 1995 for realisation of the decree amount by arresting the Judgment Debtor. Since the Judgment Debtor was not traceable, that E.P was dismissed on 12.12.1996. Thereafter, the Decree Holder has filed E.P.No.42 of 1997 for Attachment and sale of Immovable Properties in S.No.82/2, 126/1 and 127/1. The Petitioner has filed E.A.No.51 of 1999 for raising the order of Attachment. According to the Petitioner, the Property was allotted to him in a family arrangement and that he is in possession and enjoyment of the property and hence, prayed for raising of the Attachment. 4. In consideration of the evidence and materials on record, the lower Court found that the Judgment Debtor was the Kartha and was in management of the family. It was further held that when Father and Son were living in one house, it was quite unbelievable that the Petitioner was not aware of the suit and the proceedings between the Decree Holder and the Second Respondent. Pointing out that Exs.P.2 to P.6 stand in the name of the Second Respondent, the Executing Court dismissed the Application of the Petitioner filed under O.21 R.58 C.P.C, which is challenged in this Civil Revision Petition. 5. Pointing out that Exs.P.2 to P.6 stand in the name of the Second Respondent, the Executing Court dismissed the Application of the Petitioner filed under O.21 R.58 C.P.C, which is challenged in this Civil Revision Petition. 5. Assailing the Impugned Order, the learned counsel for the Revision Petitioner has submitted that when there was oral partition in 1986 and the Parties have also recorded a Partition memo on 25.04.1992, the Executing Court ought to have kept in view and raising the order of Attachment. It was further submitted that the Petitioner is in separate possession and enjoyment of the properties and only when the properties had been brought for sale, he came to know about the decree proceedings and the Execution Proceedings and immediately filed Application under O.21 R.58 C.P.C. It was further submitted that even the Executing Court has found that the Properties are the joint family properties and in that event, the Petitioner would be entitled to ½ share and the Decree Holder is not right in bringing the entire property to sale. 6. Countering the arguments, learned counsel for the Respondents has submitted that even after 14 years of decree, the Decree Holder is not able to realise the decree amount because of the delaying tactics adopted by the Second Respondent/Judgment Debtor. It was further submitted that the Petition filed by the Petitioner is only at the instigation of the Second Respondent as a device to delay the Executing Proceedings. 7. The dispute is between the Father and Son and the Petitioner being the Grandson. The First Respondent Father has obtained the money decree in O.S.No.57 of 1992 way back on 05.08.1992. For realization of the decree amount, the First Respondent has filed the Execution Petition seeking Attachment and sale of Immovable properties. After Attachment was ordered, the Petitioner has filed the claim Petition under O.21 R.58 C.P.C. According to the Petitioner, the properties were allotted to him in a family arrangement in 1986 and the same was also reduced to writing under Ex.P.1 (dated 25.04.1992). Further case of the Petitioner is that he is in enjoyment of S.No.127/1 and other Items of properties and is in enjoyment of the same, and that he is paying the kist. Ex.P.2 – Receipt for payment of electricity consumption charges and Exs.P.6 and P.7 – Kist Receipts were produced before the Executing Court. Further case of the Petitioner is that he is in enjoyment of S.No.127/1 and other Items of properties and is in enjoyment of the same, and that he is paying the kist. Ex.P.2 – Receipt for payment of electricity consumption charges and Exs.P.6 and P.7 – Kist Receipts were produced before the Executing Court. All the documents are in the name of the Judgment Debtor - Second Defendant. Referring to Exs.P.2 to P.6, the Executing Court observed that the property is the joint family property of which the Second Respondent is the kartha of the joint family. Ex.P.1 is an unregistered document. The alleged Partition is not substantiated by subsequent mutation of Revenue Records or payment of kist etc., by the Petitioner. Having regard to the same, the Executing Court rightly found that the property is the joint family property. 8. The Second Respondent being the Kartha of the joint family has borrowed the amount on a Promissory Note. The Promissory Note Debt borrowed for family necessity and the decree passed thereon is certainly binding on the Petitioner, who is the co-parcener to a joint Hindu Family. In the decision reported in Amrit Sagar Gupta Vs Sudesh Beharilal (A.I.R. 1970 S.C. 5), the Supreme Court has held that the Suit filed against the manager of a Hindu joint family need not describe him as such and the decree passed against him will certainly bind the other members as well. 9. According to the Petitioner, he had no knowledge of the Suit and other proceedings between the Decree Holder and Judgment Debtor, who is none other than his Grandfather and Father. The suit was filed by the First Respondent in 1992. The suit was hotly contested and the matter went to appeal in A.S.No.53 of 1993, which was also dismissed. It is stated that the Second Appeal preferred before the High Court was also dismissed. While so, it is quite unbelievable that the Petitioner was not aware of the litigation between his Grandfather and Father. It is relevant to note that the Petitioner's Mother is stated to be the Postmaster of that village. The Executing Court has rightly inferred knowledge of the proceedings to the Petitioner and other Members of the family. The Petition has been filed belatedly only to delay the Execution Proceedings. It is relevant to note that the Petitioner's Mother is stated to be the Postmaster of that village. The Executing Court has rightly inferred knowledge of the proceedings to the Petitioner and other Members of the family. The Petition has been filed belatedly only to delay the Execution Proceedings. In any event, the debt borrowed by the Father and the Decree passed thereon is binding on all the family members and the Decree Holder is entitled to bring the entire family properties to Attachment and sale for realization of the decree amount. The Impugned Order does not suffer from any impropriety or error of law, calling for interference. 10. For the foregoing reasons, the order dated 15.09.2000 passed by the District Munsif, Dharmapuri in R.E.A.No.51/99 in R.E.P.No.42 of 1997 in O.S.No.57 of 1992 is confirmed and this Civil Revision Petition is dismissed. Consequently, the connected C.M.P.No.15367 of 2000 is closed.