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2008 DIGILAW 3088 (MAD)

E. M. Kannappan & Others v. G. Syamala & Others

2008-08-26

S.PALANIVELU

body2008
Judgment : The Civil Revision Petitions are filed against the order of the learned District Munsif, Tambaram made in E.A.No.33 of 2007 in E.P.No.154 of 1993 dated 22.06.2007. 2. The allegations found in the affidavit of the Respondents/Proposed Decree Holders are as follows: 2 (i) The proposed parties are wife, son and daughters of the Decree Holder G. Chandraiah, who died on 4. 2006 leaving behind them as his legal representatives. He executed the will dated 13. 2006 bequeathing the suit property on the proposed decree holders excepting the third proposed party by name G. Srinivasan. Further, he is added as a proposed party by way of abundant caution. Hence the petition has been filed to recognise them as legal heirs of the deceased decree holder and permit them to proceed with execution proceedings. 3. In the Counter affidavit filed by the first respondent in the execution proceedings by name E.M. Kannappan, the following have been averred. 3. (i) Though the deceased decree holder has not bequeathed the suit property in favour of the third proposed petitioner G. Srinivasan, impleding him as one among the decree holders is unsustainable. This counter is filed on behalf of the respondents 1 and 6 to 11 challenging the maintainability of the petition. There is no proceedings in the original suit on the legal representatives of Judgment Debtor Alamelu Ammal. But how the name of Alamelu Ammal has been shown in cause title of the present application is not known, when there being no proceedings taken against her. The present petition has been filed in two capacities, one by means of inheritance as legal heirs to the property and other is on the strength of alleged Will. The petitioner has not produced any succession certificate nor the alleged Will dated 13. 2006. Chandraiah died on 02.04.2006 but the notice of hearing was given to the respondents side on 13.03.2007 and they have not only filed any applications to condone the delay, and to set aside the abatement which has occurred in default of taking steps to implead the legal representatives in time. These respondents filed applications under Section 47 of C.P.C. and the orders passed in those applications were taken before the High Court, Madras in C.R.P.Nos.1259 of 2005, 1260 of 2005 and 1261 of 2005. All of them were dismissed on 110. 2006. These respondents filed applications under Section 47 of C.P.C. and the orders passed in those applications were taken before the High Court, Madras in C.R.P.Nos.1259 of 2005, 1260 of 2005 and 1261 of 2005. All of them were dismissed on 110. 2006. Filing Civil Miscellaneous Petitions for impleading the legal representatives without assigning any reason for delayed approach before this Court could not be maintainable. Hence the petition may be dismissed. 4. Even though in the counter affidavit, very many grounds have been raised assailing the allegations in the affidavit filed by the proposed decree holders, it is unfortunate to note that the Court below has not adverted to any of the grounds but simply disposed of the petition by means of a cryptic order, by observing that the petitioners have produced legal heirship certificate issued by Tahsildar and since the dispute is with regard to the immovable property, there is no need to produce succession certificate. The above said observation may constitute one among the reasons to allow the application. But when the other grounds are available in the Counter, it is incumbent upon the Court to analyse them in the light of the submissions advanced from both sides. In the Counter affidavit it is stated that the deceased Chandraiah had bequeathed the suit property in favour of the proposed decree holders except the third proposed petitioner G. Srinivasan. While there is a specific allegation as to the impleading of third petitioner is alleged in the counter, the Court below should have examined the circumstances under which he is on the array of the petition. In other words, the order of the Court below should have contained the reasoning for permitting the third petitioner to come into record. 5. Yet another limb of contention on behalf of the appellants is that while Alamelu Ammal was not impleaded in the original proceedings, for what reason the names of her legal representatives have been mentioned in the cause title, is not clarified. The learned District Munsif has not taken into consideration this aspect and answered in his order. 6. Next leaf of contention on behalf of the appellants is , even though Chandraiah died as early as on 4. The learned District Munsif has not taken into consideration this aspect and answered in his order. 6. Next leaf of contention on behalf of the appellants is , even though Chandraiah died as early as on 4. 2006, notice of hearing for the application to implead the legal representatives was given only on 13.03.2007 after a long time without showing the default on the part of the petitioners in filing the application to condone the delay in taking steps and to set aside the abatement which has occurred by the failure on the part of the petitioners. It is not known whether the application to implead the legal heirs was presented before the Court within time, whether it was represented and was numbered later, enabling the petitioners to give notice of hearing to the respondent on 13.03.2007. When the allegations as to the delay are explicit in the counter, it is bounden duty on the part of the Court to discuss this issue and to render finding in its order. But the order of the lower court is bereft of this finding. It is just and necessary for the Court to furnish finding with regard to the above allegation in its order. 7. The ends of justice will be met only if the court below gives finding as to the grounds aforestated and only on discussion on those points the petition could be disposed of, for which a thorough examination of the facts is inevitable. Hence this Court is of the considered view that this matter has to be remitted back to the lower Court and come out with a disposal with a complete discussion on facts and law on the subject. The court below shall afford ample opportunity to both sides to lead evidence both oral and documentary. In view of the above observations, the order passed by the Court below is liable to be set aside and it is accordingly set aside. 8. In fine, all the Civil Revision Petitions are disposed of with the above directions and observations. Connected Miscellaneous Petitions are closed. No costs. 9. The learned District Munsif, Tambaram, is directed to dispose of the Execution Application No.33 of 2007 in E.P.No.154 of 1993 on its file preferably within one month from the date of receipt of this Order.