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2007 DIGILAW 107 (MAD)

Kuppammal v. Chinnathambi Padayachi & Others

2007-01-08

S.ASHOK KUMAR

body2007
Judgment :- As against the concurrent findings by the courts below the first defendant in the Execution Application has filed the present appeal. 2. The first respondent herein who is a third party to the Execution Proceedings has filed the E.A.No.1398 of 1984 in O.S.No: 856 of 1972 contending that he purchased the 1.0.34 cents namely the 6th item in the decree on consideration from Selvaraj, thangavelu and Chinnapattu. According to him the vendors filed O.S.No:649 of 1972 before the trial court and the same was decreed on 30.11.1973. In pursuance of that decree in E.P.No.210 of 1980 the trial court executed a registered sale deed in favour of the said Selvaraj and Thangaraju on 24. 1981. Therefore the first respondent being a purchaser from them is a bona fide purchaser. After such purchase, the petitioner dug out two wells and made improvements for doing vegetation. The first respondent also alleged that the respondents viz., Kuppammal and others who are the plaintiffs/decree holders have obtained a false and collusive decree and taken delivery on 38. 1984. At that time the petitioner was away at Madras, but the delivery is not yet recorded. Therefore he is entitled for re-delivery. The decree holders are quite aware of the first respondents purchase. .3. The decree holders resisted the said application by filing counter affidavits contending that there is no proper consideration paid by the first respondent to Selvaraj, Thangavelu and Chinnapattu. He is not a bona fide purchaser and his getting possession after his purchase is not correct. The contention of the first respondent that the decree obtained is a collusive one is not correct. The Vendors of the first respondent have no title to convey the suit property. The suit item and other items originally belonged to one Nagappa Padayachi and the vendors of the first respondent are the illegitimate sons of Nagapppa Padayachi. On the death of Nagappa Padayachi the decree holders 1 to 3 and Loganayagi became entitled to the suit property and other properties. Hence they filed the suit for declaration of title and for possession impleading Loganayagi, the vendors of the first respondent and others. The vendors of the first respondent are the defendants 3 to 5 in the suit. On the death of Nagappa Padayachi the decree holders 1 to 3 and Loganayagi became entitled to the suit property and other properties. Hence they filed the suit for declaration of title and for possession impleading Loganayagi, the vendors of the first respondent and others. The vendors of the first respondent are the defendants 3 to 5 in the suit. They contested the suit admitting that the suit property and other items of the suit property are the properties of Nagappa Padayachi but they set up an oral partition in which they alleged to have been allotted with items 4 to 6 of the suit property (including this suit item which is the sixth item in the suit) and on that basis they claimed title to these items. They also set up the sale in favour of Loganayagi and agreement to resell by Loganayagi and in filing a suit in O.S.No:649/72. But in the last, the suit was decreed as prayed for, negativing the defence of defendants 3 to 5 who are the vendors of the first respondent. Hence it is evident that the sale by defendants 3 to 5 to Loganayagi and the agreement to resell by loganayagi are sham and invalid transactions so the decree in O.s.No.649/72 is invalid. The said decree will not bind the decree holders 1 to 3 who are not parties in O.s.No.649/72. Hence the alleged sale in favour of the first respondent in the revision in pursuance of O.s.No.649/72 also will not bind the decree holders and thus the first respondent has no title to the suit item. On the contrary, the first respondent is barred from denying the title of the decree holders to the suit item under the principle of res judicata as the decree in O.S.NO;856/72 has been passed binding the vendors of the first respondent. Admittedly, the vendors of the first respondent contested the suit, necessary issues were framed and the suit was decreed ultimately. 4. Admittedly, the vendors of the first respondent contested the suit, necessary issues were framed and the suit was decreed ultimately. 4. Further, the sale in favour of the first respondent is affected by lis pendens as the vendors of the first respondent are defendants 3 to 5 in the present suit and as the petitioner mentioned property is the 6th item of the suit, the title of the decree holders will not be affected by the sale effected by the vendors of the first respondent and therefore the sale in favour of the first respondent is void. The Execution Application is not maintainable under Order 21 Rule 102 CPC as the same does not apply to the first respondent who is a transferee pendente lite. Recording delivery of possession is a ministerial act which cannot be stayed. If delivery is not recorded the respondents cannot maintain the possession which was admittedly given to them by court. 5. The learned Trial Judge taking into consideration of the pleadings and the evidence both oral and documentary and on hearing the learned counsels appeared on either side, allowed the Execution Application No.1393/84. Against which the decree holders preferred an appeal in CMA.No:14 of 1994 and the learned Appellate Judge also after considering the submissions of the counsels, dismissed appeal confirming the order passed by the learned Trial Judge. Aggrieved of the same, the present CMSA has been preferred before this court by the first plaintiff/decree holder. .6. Learned counsel for the appellant/decree holder reiterating the stand taken in the counter to the Execution Application contended that Selvaraj, the third defendant in the suit is barred from contending that he is the son of Nagappas lawfully wedded wife as he did not choose to let in any evidence and he has not preferred any CRP or CMA as against the dismissal of the I.A., field by him to restore the exparte decree passed in present suit in O.S.No.856 of 1972. He is the son of a concubine and he has no share in the property and therefore he cannot get any better right, title or interest, than what Loganayagi had and therefore at best he could only get ½ share in the property. He is the son of a concubine and he has no share in the property and therefore he cannot get any better right, title or interest, than what Loganayagi had and therefore at best he could only get ½ share in the property. While the execution proceedings were pending Selvaraj sold his right, title and interest to the first respondent herein who is a stranger and the sale is squarely hit by lis pendense and therefore he cannot claim as a bona fide purchaser under Section 52 of the Transfer of Property Act. 7. Learned counsel for the appellant further contended that as the first respondent is a purchaser pendente lite, Or.XXI R.102 CPC is a complete bar to any such application. The present suit was filed on the basis that Lokganayaki is the only lawful wedded wife of Nagappa and that Kuppammal is their daughter. The suit was file against Nagappas concubine and their children and the suit has been decreed and therefore it is not open to anybody who is a party to that suit to challenge the correctness of that decree after 34 years. Therefore, there can be no fraud in Kuppammal who is the daughter of Nagappa claiming her right to property under law. 8. The further contention of the learned counsel for the appellant is that the decree passed in the present suit was passed after due notice to all parties and nothing was done secretly. The third defendant Selvaraj filed his written statement but later did not defend the suit or let in any evidence in support of his plea and he did not take any steps for joint trial of O.S.Nos.649/72 and 856 of 1972. 9. From the oral and documentary evidence it is clear that Selvaraj and Thangaraj who are the sons of Nagappa born through Kasiammal have executed the deed to Loganayaki on 19. 1965 with a condition to reconvey the suit property after expiry of 7 years and since the said Loganayaki did not reconvey the property they filed the suit in O.S.No:649/72 which was decreed on 30.11.1973 and based on the decree the suit property has been executed by the court to the said Selvaraj and Thangaraj and it is from them only the first respondent/third party has purchased under Ex.D.2 sale deed. 10. 10. According to the appellant the decree in O.S.No.649/72 will not bind them since Kuppammal, Chinnapillai and Machakanthi who are legal heirs of Nagappa have not been impleaded in the said suit. They filed the suit in O.S.No.856 of 1972 claiming right including the suit property and in the said suit Selvaraj, Thangaraj have been arrayed as defendants and after passing of decree the suit property has been conveyed to them and therefore there is no basis for claiming redelivery of the suit property. 11. A perusal of the records would show that the suit No.649/72 is anterior in time than the suit in O.S.No.856 of 1972. The suit property which is in an extent of 0.34 cents has been described in the schedules in both the suits. The contents of the written statement filed in O.S.No.856 of 1972 itself would clearly show the relationship of the parties and under which circumstances the earlier suit has been filed in O.S.NO.649/72 and pending the same, the second suit in O.S.NO.856 of 1972 has been instituted by the parties. Yet the decree holders have not taken steps to implead themselves in the earlier suit. Therefore the contention that since they not being party to the earlier suit, the sale will not bind them cannot be countenanced. It is also the finding of the courts below that possession has been obtained by the decree holders while the first respondent was away at Chennai and till that time the possession was with the first respondent. 12. Learned counsel for the respondents contended that the decree obtained by Kuppammal was in collusion with Loganayaki and in that respect he also relied on the judgment of the court in Chengalvaraya Naidu etc., Vs. Jagannath etc., reported in 1994(1) LW 21, wherein it has been held as follows:- "Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception to gain by anothers loss. It is a cheating intended to get an advantage." "The High Court fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case J obtained the preliminary decree by playing fraud on the court. The High court, however, went haywire and made observations which are wholly perverse. It is a cheating intended to get an advantage." "The High Court fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case J obtained the preliminary decree by playing fraud on the court. The High court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. We are constrained to say that more often than not process of the court is being abused....We have no hesitation to say that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of the litigation." "Fraud avoids all judicial acts, ecclesiastical or temporal as observed by Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 13. In the present case as well by obtaining a decree in collusion with Loganayaki, the decree holders got possession when the first respondent was away from the suit property which is nothing but a fraud and therefore both the courts below concurrently held that the first respondent is entitled for redelivery of possession. Since it is a fraud played upon the court as well as the first respondent, the bar under Order XXI Rule 102 CPC will have no application mores when the decree obtained by Kuppammal and others itself is a nullity. Under these circumstances, there is no question of law, much less substantial question of law arising in this appeal. 14. Since it is a fraud played upon the court as well as the first respondent, the bar under Order XXI Rule 102 CPC will have no application mores when the decree obtained by Kuppammal and others itself is a nullity. Under these circumstances, there is no question of law, much less substantial question of law arising in this appeal. 14. In the result this Appeal is dismissed confirming the judgment and decree of the courts below. No costs.