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2007 DIGILAW 523 (MAD)

M. C. Gopal & Others v. S. Gajendra Naid & Others

2007-02-08

S.ASHOK KUMAR

body2007
Judgment :- As against allowing the Execution Application filed by the first respondents/third party herein on the file of the Sub court, Poonamallee, by the learned District Judge, Chengalpattu, the appellants who are decree holders have filed the present Civil Miscellaneous Second Appeal. .2. The brief facts of the case are as follows:- .The suit O.S.No:260 of 1981 was filed by the LRs of Chakraqpani Naidu. The suit in O.S.No:135 of 1982 was filed for partition by Govindasamy Naidu claiming half share in the suit property and stating that the sale of the entire suit property by his elder brother Chakrapani Naidu as joint family Manager to Subramani on 14. 1965 is not binding. There was an agreement to repurchase the property between the LRs of the Chakarapani and Dhandapani. The suit in O.S.No.39 of 1983 was filed by the purchaser Dhandapani. All the three suits were heard and disposed of by the learned trial court by a common and joint trial. As per the common judgment, O.S.No:260 of 1981 filed by the LRs of Chakrapani Naidu for reconveyance against the purchaser Dhandapani was decreed. The preliminary decree was passed in the suit O.S.No:135 of 1982 filed by Govindasamy Naidu for partition of half share in the suit property. The suit filed in O.S.No.39 of 1983 by the purchaser Dhandapani was also decreed that he should not be evicted from the suit property except due process of law. Admittedly no appeals have been filed against the common judgment in respect of the preliminary decree passed in O.S.No:135 of 1982 and the decree in O.S.No.39 of 1983 and as such the judgment in the said suits have become final. The appeal preferred by Dhandapani against the judgment and decree in O.S.No: 260 of 1981 was dismissed by the District Court under Ex.r.2 on 21. 1986 and the S.A.No.1285 of 1986 against the same before the High Court was also dismissed under Ex.R.3. .3. The first respondent herein/third party purchased half share of Govindasamy Naidu from his wife under sale deed Ex.P.9. In the pending E.P.11 of 1990 on the file of the Sub Court following the decree in O.S.No.135 of 1982 filed by Govindasamy for delivery of possession of his half share and on his death possession was handed over to his wife Adhilakshmi Ammal and their sons and daughters as seen from Ex.P.5. In the pending E.P.11 of 1990 on the file of the Sub Court following the decree in O.S.No.135 of 1982 filed by Govindasamy for delivery of possession of his half share and on his death possession was handed over to his wife Adhilakshmi Ammal and their sons and daughters as seen from Ex.P.5. Therefore after such delivery effected through court under Ex.P.5 and after the disposal of the Second Appeal No.1285 of 1986 under Ex.B.3, dated 16. 1999 the first respondent/third party Gajendra Naidu purchased under sale deed Ex.P.10 dated 29. 1999 namely the half share of Govindasamy Naidu in the suit property. So he had filed the Claim Petition that the decree in O.S.No:261 of 1981 in respect of the entire suit property namely 5.65 acres is not executable since the decree in O.S.No.135 of 1982 in which the LRs of Chakrapani Naidu and the purchaser Dhandapani were made as defendants 1 to 11 and the judgment and decree in the said suit has become final and since Govindasamy Naidu was made as a party in O.S.No.260 of 1981 filed by the LRs of Chakrapani Naidu for reconveyance of the entire suit property against the Dhandapani Chetty. Though it can be said that actually the possession has not been handed over pursuant to decree in O.S.No:260 of 1981, by Dhandapani fro which now the LRs of Chakrapani Naidu have filed E.P.132 of 1999 in O.S.No.260 of 1981, since the LRs of Chakarapani Naidu are not entitled to the entire suit property and are entitled to only half share in the suit property pursuant to the preliminary decree in O.S.No.135 of 1982, the first respondent/third party is entitled for seeking relief of non execution of the decree in E.P.No.132 of 1999 in O.S.No.260 of 1981. Claiming half of the right, the first respondent/third party filed E.A.No:78 of 2001 in the said Execution Petition. But the said Execution Application was dismissed by the trial court. As against the same, the first respondent/third party filed appeal in CMA.No:49 of 2001 before the learned District Judge, who allowed the same upholding the entitlement of half share of the first respondent. Aggrieved of the same, the present CMSA has been preferred. 4. But the said Execution Application was dismissed by the trial court. As against the same, the first respondent/third party filed appeal in CMA.No:49 of 2001 before the learned District Judge, who allowed the same upholding the entitlement of half share of the first respondent. Aggrieved of the same, the present CMSA has been preferred. 4. At the time of admission of the appeal, the following two questions of law were framed by this court:- i) Whether the lower appellate court was right in going behind the decree in O.S.No: 260 of 1981 and pronouncing on the rights of parties contrary to the said decree? ii) Whether the lower appellate court was right in ignoring the pendency of I.A.No:518 of 2000 filed seeking to set aside the decree in O.S.No:135 of 1982? .5. Learned counsel for the appellants/decree holders contended that the the Execution Application filed by the appellants under Order 21 Rule 97 CPC is not maintainable on the facts and circumstances of the case. The learned District Judge has erred in going behind the decree granted in O.S.No:260 of 1981 and pronouncing the rights of the parties contrary to the said decree since the relief being specific performance, the reconveyance agreement cannot be split up. Learned counsel contended that the trial court has found that delivery of possession has been completed under Ex.P.5 and Dhandapani alone continues to be in possession. It is not correct to state that the decree in O.S.No:39 of 1983 will not bind the first respondent more so when the decree specifically says that the heirs of Chakrapani Naidu who had filed a suit for specific performance of reconveyance agreement for the entitlement of the property shall not interfere with the possession of Dhandapani Chettiar except in execution of their decree in O.S.No:260 of 1981. Further, the decree in O.S.No:135 of 1982 had not become final an the application to set aside the said ex parte decree has been filed by the third petitioner in I.A.No:1518 of 2000 and the same is pending. 6. On the other hand, learned counsel appearing for the respondents contended that so far as the suit for specific performance is concerned instituted as against Dhandapani Chettiar, the same was contested by him and ultimately it stood confirmed by the High Court. The decree for specifically performance is not a suit for title but one based on an agreement. 6. On the other hand, learned counsel appearing for the respondents contended that so far as the suit for specific performance is concerned instituted as against Dhandapani Chettiar, the same was contested by him and ultimately it stood confirmed by the High Court. The decree for specifically performance is not a suit for title but one based on an agreement. Title to the property is never put in controversy. Whatever right the appellants have in respect of the property alone could be dealt with by them. Therefore, it is needless to add that appellants inherited only half share of heir father Chakrapani, the other half being that of Govindasamy. Therefore, the decree obtained by Govindasamy is binding upon the appellants as well as Dhandapani Chettiar. Such being the legal and factual aspect the defendants in the suit had accepted the decree and did not challenge it. Though Dhandapani Chettiar choose to challenge the decree made against him in O.S.No.260 of 1981, he had admitted the title of Govindasamy and had not filed any appeal against the decree in O.S.No.135 of 1982 on the file of the Sub court, Poonamallee. Consequently, Govindasamy had initiated steps for passing of final decree in I.A.No: 599 of 1986 and a Commissioner was also appointed on 29. 1988 and he had inspected the property and submitted a report on 29. 1988. After appreciating the report of the court had also passed the final decree on 2. 1989. The present Execution Application was filed on 211. 1989 for delivery of possession. At that point of time, Dhandapani filed an application under Section 47 CPC in I.A.No.162 of 1991. The same was dismissed on 30.4.1992. Dhandapani Chettiar filed CRP.1775 of 1992 and it was dismissed on 12. 1993 holding that the petitioner therein cannot raise a contention that the decree is not executable. 7. Further it is also contended by the learned counsel for the respondents that the first appellant M.C.Gopal also filed E.A.No:61 of 1994 raise the very same objection, but the same was ultimately rejected by the High Court. Though the said E.A.,was filed by kartha which is was not maintainable, it was entertained and ultimately rejected. Thereafter Bakthavatchalam and Madurai Naidu the second and third appellants have filed E.A.No.174 of 1999 under section 47 CPC raising the very same contention. Though the said E.A.,was filed by kartha which is was not maintainable, it was entertained and ultimately rejected. Thereafter Bakthavatchalam and Madurai Naidu the second and third appellants have filed E.A.No.174 of 1999 under section 47 CPC raising the very same contention. The application dismissed, against which CRP.3735 of 2000 was filed recording the finding that possession of B Schedule taken on 2. 1997 and that A schedule was taken delivery through court on 112. 2000. It was also observed that the partition decree in O.S.No:135 of 1982 is binding upon the appellants. 8. However, mischievously the appellants filed E.P.No.132 of 1999 to execute the decree n O.s.No.260 of 1981 as against Dhandapani against the respondent, the purchaser from Govindasamy on 29. 1999. Though Dhandapani Chettiar was never in possession of the property allotted to Govindasamy and possession was taken through Court in execution of the decree in O.S.No.135 of 1982, yet in execution of the decree possession of the respondent No.1 was sought to be disturbed and that is why the first respondent has filed the impugned I.A., to declare that the decree in OS.No.260 of 1981 is inexecutable against him and would be valid only insofar as the share of the appellants as declared in O.S.No:135 of 1982. Therefore the decree obtained by Govindasamy is binding on both Dhandapani and the appellants, being parties to the suit in O.S.No:135 of 1982. .9. On a consideration of the pleadings and the earlier proceedings, it is clear that the appellants were aware as judgment debtors in O.S.No.1356 of 1982 that they have of right in respect of the share allotted to Govidnasamy. His right is unimpeachable and his title cannot be questioned, especially by the appellants. As stated already, the decree had become final and conclusive so far a ½ share in the properties are concerned. The decree was also executed an delivery was taken. In execution of decree for specific performance, the plaintiffs in O.S.No.260 of 1981 cannot claim anything more than what they are legally entitled to. Inasmuch as Govindasamys right had been affirmed b the court of law in O.S.No:135 of 1982 and that decree having become final and conclusive, it would preclude the appellants herein from re-agitating the issues over and again or attempt to reopen the decree indirectly. Inasmuch as Govindasamys right had been affirmed b the court of law in O.S.No:135 of 1982 and that decree having become final and conclusive, it would preclude the appellants herein from re-agitating the issues over and again or attempt to reopen the decree indirectly. The first appellate court rightly taken into consideration the decree granted in O.S.No.135 of 1982, the order in E.A.NO.208 of 1997, the order in CRP.No:2031 of 2000, the order in E.A.No.174 of 1999, the order in CRP.No:3735 of 1999 as well as the order in CRP.No.1775 of 1992 and rendered a clear and categoric finding that the appellants cannot question the title of Govindasamy directly or indirectly. Even the counsel for the appellants admitted that Govindasamy is entitled for ½ share. For these reasons, I do not find any illegality or irregularity in the order of the first appellate court. The question of laws are answered accordingly. 10. In the result, this Appeal is dismissed confirming the judgment and decree of the first appellate court. There is no order as to costs.