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2011 DIGILAW 878 (MAD)

K. Lakshmi v. S. K. Sridhar

2011-02-18

R.S.RAMANATHAN

body2011
Judgment :- 1. The unsuccessful plaintiff, who is not able to get possession of the property even though his suit for recovery of possession was decreed and confirmed by this court in the Second Appeal, is the revision petitioner. 2. The revision petitioner filed O.S.No.2684 of 1996 for delivery of possession of the property, for damages and for future mesne profits. Originally, the suit was filed by the revision petitioner in this court in C.S.No.216 of 1984 against the 1st respondent only and thereafter, two other defendants were impleaded at the instance of the first respondent herein and the suit was transferred to the City Civil Court and renumbered as O.S.No.2684 of 1996 and the prayer was amended to the effect that the defendants are to be directed to deliver vacant possession of the suit property and for damages. 3. The averments in the plaint filed by the revision petitioner was that on 23.5.1968, he entered into an agreement of sale with defendants 2 and 3 and as per the agreement, defendants 2 and 3 agreed to purchase the property. The property was allotted to the revision petitioner by the City Improvement Trust. Defendants 2 and 3 filed O.S.No.3069 of 1976 on the file of the City Civil Court, Madras for declaration that the revision petitioner herein was not entitled to receive the balance sale consideration and for injunction restraining the revision petitioner from interfering with their possession and enjoyment of the suit property. Their suit was dismissed and thereafter, defendants 2 and 3 filed C.S.No.387 of 1977 on the file of this court for directing the revision petitioner herein to get the conveyance deed form the Tamil Nadu Housing Board and thereafter to execute the sale deed in their favour as per the agreement dated 23.5.1968 and for damages. That suit in C.S.No.387 of 1977 was allowed to be dismissed for default. In the meanwhile, the said defendants 2 and 3 allowed the first respondent herein to occupy the property as tenant and the second defendant also filed H.R.C.No.1708 of 1976 against the first respondent herein for eviction and the first respondent herein also filed H.R.C.No.1522 of 1977 under section 4 of the Tamil Nadu Building (Lease and Rent Control) Act for fixation of fair rent. H.R.C.No.1708 of 1976 filed by the second defendant for eviction was ordered and H.R.C.No.1522 of 1977 filed by the respondent herein for fixation of fair rent was also allowed and fair rent of Rs.133/= was fixed. But, the decree passed in H.R.C.No.1708 of 1976 was not executed. The first respondent herein continued to be in possession of the property and according to the revision petitioner, he was not her tenant and his possession is unlawful and therefore, he is liable to be evicted. 4. The first respondent filed statement and contended that there was a tripartite agreement entered into between the revision petitioner, himself and the second defendant and under the said tripartite agreement, the 1st respondent agreed to purchase the property and thereafter, he was in possession of the property as the owner and therefore, he cannot be evicted. Nevertheless the respondent also made a counter claim for refund of Rs.2,01,506/= being the improvement made by him in the suit property, refund of Rs.41,500/= being advance paid by him under the tripartite agreement. 5. The second and third defendants also made counter claim in the written statement for refund of Rs.1,56,114.70 paid under the original agreement of sale between the revision petitioner and defendants 2 and 3. 6. The learned Trial Judge decreed the suit holding that the revision petitioner is the absolute owner of the suit property and the possession of the first respondent herein is not lawful and his possession was lawful till 11.12.1980 and thereafter, his possession became unlawful and therefore, the revision petitioner is entitled to a decree as prayed for. 7. Against the said judgment and decree, defendants 2 and 3 filed A.S.No.177 of 1999 and the first respondent herein filed A.S.No.180 of 1998 on the file of the City Civil Court, Chennai. A.S.No.177 of 1999 filed by defendants 2 and 3 was dismissed as not pressed on the basis of the undertaking given by the revision petitioner not to proceed against defendants 2 and 3 in execution of the decree and A.S.No.180 of 1998 filed by the respondent herein was dismissed on merits confirming the findings of the Trial Court that the revision petitioner is the absolute owner of the property and the possession of the first respondent is unlawful and he is liable to vacate and hand over possession and also to pay the amount as prayed for by the plaintiff. 8. 8. Thereafter, the respondent filed S.A.No.261 of 2005 and 331 of 2007 against the judgment in A.S.No.180 of 1998 and 177 of 1999 and this court dismissed both the appeals and confirmed the findings of the courts below. Thereafter, the first respondent herein filed E.A.No.7099 of 2008 under section 47 of the Code of Civil Procedure stating that the decree is in-executable and therefore, the plaintiff/revision petitioner is not entitled to execute the decree. That petition was allowed by the court below and aggrieved by the same, this revision is filed. 9. Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the revision petitioner submitted that the court below, without properly appreciating the judgment rendered by this court in S.A.No.261 of 2005 and 337 of 2007, erred in holding that the decree is in-executable and the revision petitioner has entered into a compromise with defendants 2 and 3 and undertook not to execute the decree against them and by reason of the undertaking given by her, the entire decree has been adjusted wholly or discharged and therefore, the said decree cannot be executed. The court below also erred in holding that the first respondent herein is the tenant of the suit property and therefore, he could be evicted only under the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act and the decree passed against him for eviction cannot be executed without appreciating the findings of this court in the Second Appeal that the respondent is not the tenant in respect of the suit property. He further submitted that the court below erred in holding that the undertaking given by the revision petitioner in A.S.No.177 of 1999 not to execute the decree is against the provisions of section 23 of the Contract Act and it adversely affects the interest of the first respondent and that by reason of the undertaking given by the revision petitioner, the first respondent is also discharged from the liability under the decree and therefore, the decree cannot be executed. 10. According to the learned Senior Counsel appearing for the petitioner, the pleas raised by the first respondent that the decree is in-executable for the reasons stated above cannot be upheld having regard to various judgments rendered by this court and the Honourable Supreme Court. 10. According to the learned Senior Counsel appearing for the petitioner, the pleas raised by the first respondent that the decree is in-executable for the reasons stated above cannot be upheld having regard to various judgments rendered by this court and the Honourable Supreme Court. According to the learned Senior Counsel appearing for the petitioner, in the second appeal, this court has held that the respondent is not a tenant of the suit property and the undertaking given by the revision petitioner in favour of defendants 2 and 3in A.S.No.177 of 1999 not to execute the decree will not discharge the first respondent herein and therefore, when those findings were given in the second appeal, the Executing Court cannot go into that question and give a different finding that the first respondent is a tenant and the undertaking given by the revision petitioner in A.S.177 of 1999 will discharge the respondent from the liability under the decree. The learned Senior Counsel relied upon the decisions in SARASWATI DEVI GUPTA v. SUDHA RANI ( (2006) 1 SCC 725 ), RAVINDER KAUR v. ASHOK KUMAR ( (2003) 8 SCC 289 ) and MRS.ACHAMMA GEORGE v. R.KRISHNASWAMY (1998-1-LW 498) in support of his contention. 11. The learned Senior counsel further submitted that though the Executing Court cannot go beyond the decree while executing the decree, that does not mean that the Executing Court cannot find out the true effect of the decree. He, therefore, submitted that having regard to the pleadings in O.S.No.2684 of 1996 by the revision petitioner and the first respondent, the Executing Court ought to have held that the decree against the first respondent can be executed even though there was an undertaking given by the revision petitioner not to execute a decree against defendants 2 and 3. In support of his contention, the learned counsel relied upon the decision in BHAVAN VAJA AND OTHERS v. SOLANKI HANUJI KHODAIJI MANSANG AND ANOTHER ( AIR 1972 SC 1371 ). In support of his contention, the learned counsel relied upon the decision in BHAVAN VAJA AND OTHERS v. SOLANKI HANUJI KHODAIJI MANSANG AND ANOTHER ( AIR 1972 SC 1371 ). The learned Senior Counsel further submitted that the petition filed by the respondent is a clear abuse of process of law and such a practice should not be encouraged and a decree holder having obtained the decree and confirmed by the High Court should not be left in the lurch on technical grounds and therefore, the court below erred in holding that the decree against the respondent is unexecutable and the findings of the court below are liable to be set aside and relied upon the judgment reported in ATHISAYARAJ, D.V. v. TIRUNELVELI DIOCESE TRUST ASSOCIATION ( 2006 (1) CTC 526 ) and C.E.SULOCHANA v. C.E.SATHYANARAYANA REDDY ( (2008) 3 MLJ 371 ). 12. On the other hand, Mr.Pattabi, learned counsel for the first respondent submitted that the petition filed by the first respondent is maintainable and it is the case of the first respondent that he was inducted into possession of the property as a tenant and that was also admitted by defendants 2 and 3 who are respondents 2 and 3 herein and the second respondent also filed H.R.C.No.1708 of 1976 for eviction against the first respondent and the first respondent filed H.R.C.No.1522 of 1977 for fixing the fair rent and both the petitions were allowed and the revision petitioner was also one of the parties to H.R.C.No.1522 of 1977 and therefore, the first respondent has been recognised as the tenant in respect of the suit property and against the tenant, a civil court decree for eviction cannot be executed and therefore, the decree becomes in-executable and that was considered by the court below and the application was allowed. He further submitted that the revision petitioner filed C.R.P.(NPD) No.1727 of 2009 to strike off E.A.No.7099 of 2008 and that petition was dismissed by this court and this court has held that the first respondent has raised independent pleas and not reiterated the defence already taken in the earlier pleadings and the pleas taken by the first respondent herein were not decided in the earlier proceedings and therefore, the petition filed by the first respondent is maintainable and that order has become final and hence, it is not open to the revision petition to challenge that the petition filed by the first respondent is not maintainable. 13. The learned counsel for the first respondent further submitted that when a decree is adjusted or satisfied, the same cannot be executed and as per Order XXIII Rule 3 of the Code of Civil Procedure when it is proved to the satisfaction of the court that the decree has been adjusted wholly or partly in compromise, the decree cannot be executed and as per the undertaking given by the revision petitioner in A.S.No.177 of 1999, the entire decree became discharged as the decree for possession must be regarded as a whole and indivisible for the purpose of execution and the decree cannot be split into two parts one against the first respondent and another against respondents 2 and 3 and therefore, the decree cannot be executed against the first respondent. He further submitted that under section 23 of the Contract Act, consideration or object of an agreement is lawful, unless it is forbidden by law or involves or implies injury to the person or property of another and the main aim of the compromise between the petitioner and respondents 2 and 3 was to injure the first respondent herein and by reason of the undertaking given in A.S.No.177 of 1999, the whole decree becomes unenforceable as the revision petitioner adjusted the decree against respondents 2 and 3 and once the decree is adjusted, there cannot be any execution of the decree and therefore, considering all these aspects, the court below rightly allowed the application. He also relied upon the judgment reported in SANJEEVI v. CHITTIBABU (AIR 1953 MADRAS 473), P.RAMAIAH SETTY v. S.NARASIMHA CHARYULU (1978(1) ANDHRA WEEKLY REPORTER 140) for the proposition that the first respondent continued to be the tenant of the suit property and therefore, the decree passed by the civil court cannot be executed. He further relied upon the judgment reported in HARI SHANKAR v. GIRDHARI LAL ( AIR 1963 SC 698 ), SATYANARAYAN v. MALLIKARJUN ( AIR 1960 SC 137 ), HINDUSTAN AERONAUTICS v. AJIT PRASAD ( AIR 1973 SC 76 ), PANDURANG v. MARUTI ( AIR 1966 SC 153 ), D.L.F. HOUSING ETC. CO. v. SARUP SINGH ( AIR 1971 SC 2324 ) and ALLAHABAD DEVELOPMENT AUTHORITY v. NASIRUZZAMAN ( 1996 (6) SCC 424 ) for the proposition that under section 115 of the Code of Civil Procedure, even though the lower court judgment is erroneous, the High Court should not interfere unless the error is apparent on the fact of the record. He also relied upon the judgment in VITTALA v. PANIYUR HOSAMANE (AIR 1933 Madras 872) and NARAYANDAS v. TEJMAL (AIR 1934, BOMBAY 59) to the effect that the decree is indivisible and the decree for possession must be regarded as a whole and indivisible and it cannot be split into parts and having adjusted the decree against respondents 2 and 3, the revision petitioner cannot execute the decree against the first respondent. He also relied upon the judgment in KIRAN v. RAM PRAKASH (AIR 1980 DELHI 99), BANWARI LAL v. CHANDO DEVI ( AIR 1993 SC 1139 ) and MAHALAKSHMAMMA v. VENKATACHALAMAYYA (1954 Madras 870) for the proposition that when the compromise decree passed is opposed to the public policy and is not lawful within the meaning of Order XXIII Rule 3 of the Code of Civil Procedure, the order recording the compromise can be recalled. He also relied upon the decisions in EAST INDIA CORPORATION LTD ( (1991) 3 SCC 230 ) PALANISAMY GOUNDER v. A.V.G.PONNUSAMY CHETTIAR AND SONS ( 1999 (1) MLJ 459 ), and KAMUTHI MADALAICHAMY v. THANGARATHINA NADAR (AIR 1991 MADRAS 229) for the proposition that when a person is declared to be a tenant of the suit property, he cannot be evicted by executing a civil court decree and he can be evicted only by taking action under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. He, therefore, submitted that considering all these aspects, the court below rightly allowed the application and therefore, the revision is liable to be dismissed. 14. Heard the counsel. Before going into the various facts stated by both the parties, we will have to see the admitted facts in this revision. The revision petitioner filed the suit for eviction against the first respondent alone in C.S.No.216 of 1984 stating that the first respondent is in possession of the property and the revision petitioner entered into an agreement of sale only with respondents 2 and 3 who were later impleaded as defendants 2 and 3 in the suit and the first respondent is not a tenant of the suit property and as respondents 2 and 3 did not act according to the terms of the agreement of sale, they are not entitled to claim any benefits and therefore, the respondents are liable to hand over vacant possession of the property to the revision petitioner. Therefore, the main contention of the revision petitioner in the suit was that there is no landlord and tenant relationship between him and the first respondent and the first respondent is not a tenant under her and he has no right to be in possession of the property and his possession is unlawful and therefore, the revision petitioner is entitled to the decree of recovery of possession and also for damages. 15. The first respondent contested the suit stating that after entering into a tripartite agreement with respondents 2 and 3, he continued to be in possession of the property as owner and he was no longer a tenant in the suit property and therefore, he is entitled to be in possession of the suit property as he is in possession of the property as owner. He also filed a counter claim for the improvement made by him and also for refund of Rs.41,500/= paid by him under the tripartite agreement. He also filed a counter claim for the improvement made by him and also for refund of Rs.41,500/= paid by him under the tripartite agreement. Therefore, on a reading of the written statement filed by the first respondent herein and the counter claim made by him in the written statement, it is clear that the first respondent never claimed the status of tenant entitled to be in possession of the suit property and as a matter of fact, in the counter claim, he asked for refund of amount being the amount spent by him on the suit property and also return of the amount paid under the tripartite agreement. 16. Considering all these aspects, the learned Trial Judge held that after the tripartite agreement alleged by the first respondent, he was in possession of the property as owner even according to his contention and therefore, his possession was lawful till 11.12.1980 and thereafter, his possession became unlawful. As he claims to be in possession of the suit property as owner and therefore, he is liable to be evicted and passed the decree for recovery of possession. Therefore, the learned Trial Judge gave a specific finding that the first respondent was not in lawful possession of the suit property and he is not a tenant and he is liable to be evicted. 17. In the first appeal, the same finding was confirmed by the lower appellate court and in the second appeal filed by the first respondent, this court also confirmed the findings of the courts below that the first respondent is not in possession of the property as a tenant and his possession is unlawful. As a matter of fact, in the second appeal, three contentions were raised by the first respondent that respondents 2 and 3 were impleaded without notice to the first respondent herein and therefore, the entire proceedings is vitiated and that he paid a sum of Rs.41,500/= to respondents 2 and 3 pursuant to the tripartite agreement arrived at between the plaintiff and respondents 2 and 3 on the one hand and the first respondent on the other hand and the plaintiff/revision petitioner is bound by the tripartite agreement and the suit is barred by limitation. All the contentions were negatived by this court in the second appeal and the judgment and decree of the courts below were confirmed. 18. All the contentions were negatived by this court in the second appeal and the judgment and decree of the courts below were confirmed. 18. Further, in the second appeal, it was also contended that by reason of the memo filed by the revision petitioner in A.S.No.177 of 1999 agreeing not to execute the decree against respondents 2 and 3, the decree became inexecutable against the first respondent and that was also negatived by this court in the Second Appeal. Therefore, as per the judgments of the Honourable Supreme Court reported in 2006 (1) SCC 725 and 2003(8) SCC 289 cited supra, the findings given in second appeal cannot be re-agitated in the execution application filed by the respondent and it is not open to the first respondent to raise the same plea in the execution application. 19. Further, the contentions of the first respondent that the compromise between the revision petitioner and respondents 2 and 3 is unlawful as it affects the interest of the first respondent and such unlawful agreement cannot be recognised by the court under Order XXIII Rule 3, in my opinion, will only support the case of the revision petitioner. According to me, the compromise entered into between the petitioner and respondents 2 and 3 cannot be termed as unlawful. Admittedly, the first respondent is in possession of the suit property and respondents 2 and 3 were not in possession of the suit property. The suit was originally filed against the first respondent for recovery of possession and thereafter, at the instance of the first respondent respondents 2 and 3 were impleaded and after impleading them, the prayer remained the same and instead of the word 'defendant', it was amended as 'defendants' and by reason of the amendment, the defendants were directed to deliver possession of the property. When admittedly, the first respondent is in possession of the property, there is no question of directing respondents 2 and 3 to hand over possession and therefore, the decree in respect of possession can be executed only against the first respondent as he is in possession of the property and it cannot be executed against respondents 2 and 3 as, admittedly, they are not in possession. In the compromise filed in A.S.No.177 of 1999, it has been stated that the revision petitioner will not execute the decree against respondents 2 and 3 and on the basis of the undertaking given by the revision petitioner, respondents 2 and 3 did not press the appeal filed by them. 20. As stated supra, the decree was one for recovery of possession and for damages and for future mesne profits. As per decree, decree for possession cannot be executed against respondents 2 and 3 as they are not in possession of the property, the decree for damages and mesne profits can be executed against the first respondent and respondents 2 and 3. It cannot be contended that the money decree passed against the respondents is indivisible and as per the decree, all the respondents are jointly and severally liable to pay the amount decreed in favour of the revision petitioner. Therefore, it cannot be contended by the first respondent that the decree is indivisible and it cannot be executed in parts. 21. Further, by entering into a compromise with respondents 2 and 3, the revision petitioner has not given up any part of the decree against respondents 2 and 3. As per the decree passed in O.S.No.2684 of 1996, the decree can be executed against the respondents for eviction and also for damages and mesne profits. The revision petitioner has not divided the decree into two parts and gave up one part in favour of respondents 2 and 3. The decree remains in tact and the revision petitioner only undertook not to proceed against respondents 2 and 3 in execution of the decree and has stated that decree against respondents 2 and 3 was only in respect of recovery of money and recovery of possession cannot be executed against respondents 2 and 3. 22. The contention of the first respondent can be viewed from another angle. It is the contention of the first respondent that the agreement between the revision petitioner and the first respondent is unlawful. He also contended that by reason of the agreement between the petitioner and respondents 2 and 3, the decree is adjusted in full. According to me, both the pleas are mutually contradictory to each other. It is the contention of the first respondent that the agreement between the revision petitioner and the first respondent is unlawful. He also contended that by reason of the agreement between the petitioner and respondents 2 and 3, the decree is adjusted in full. According to me, both the pleas are mutually contradictory to each other. Admittedly, in the first appeal in A.S.No.177 of 1999, the compromise alleged to have been entered into between the petitioner and respondents 2 and 3 was not recorded and the lower appellate court dismissed the appeal as not pressed and it has only observed that a memo was filed by which the revision petitioner herein has undertaken not to proceed against respondents 2 and 3 in execution of the decree. In other words, the compromise between the petitioner and respondents 2 and 3 was not recognised by the court and when the compromise is not recognised, the court should not take into consideration the compromise as laid down by the Honourable Supreme Court in the decisions reported in PADMA BEN BANUSHALI v. YOGENDRA RATHORE ( AIR 2006 SC 2167 ), LAKSHMI NARAYANAN v. S.S.PANDIAN ( (2000) 7 SCC 240 ) and SULTANA BEGUM v. PREM CHAND JAIN ( AIR 1997 SC 1006 ). Therefore, when the compromise cannot be taken into consideration by reason of the fact that it was not recognised by the court, then there is no question of adjustment of decree against respondents 2 and 3 or the discharge of the decree by reason of the undertaking and therefore, the decree can be executed against respondents 2 and 3 also. 23. Further, in the judgment reported in B.N.KAWALE v. D.B.PATIL ( AIR 1997 SC 122 ) (referred in the decision reported in 1998-1- LW 498 at pg 504 cited supra) the Honourable Supreme Court has held that when the civil court decreed the suit for eviction holding that the person was not a tenant and that order has become final, it is not open to the person in possession to contend that he is still a tenant under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and therefore, the decree is a nullity. In the same decision, the judgment reported in AIR 1992 MADRAS 111, the scope of section 47 of the Code of Civil Procedure was discussed and it has been laid down that where a section refers to all questions, it means only all questions which were not raised in the suit and decided by the Trial Court. If a question was raised before Trial Court at the stage of trial and decided by the Trial Court, it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the Trial Court at the stage of trial and if he omits to raise it, even then he cannot raise it under section 47 before the Executing Court. 24. As stated supra, in the suit in O.S.No.2684 of 1996, it was held that the first respondent was not a tenant and his possession was unlawful. In the second appeal, this court has held that the decree was not adjusted and the decree is executable against the first respondent. Therefore, having regard to the specific findings in the suit, it is not open to the first respondent herein to agitate the same pleas in the execution application. No doubt, the learned Single Judge in C.R.P.No.1727 of 2009 held that the pleas raised by the first respondent in the execution application in E.A.No.7099 of 2008 are independent pleas and were not raised before in the suit, but, it was only a factual mistake without appreciating the pleas raised by the first respondent in the suit and the decision rendered in the second appeal. Further, in C.R.P.(NPD) No.1727 of 2009, this court has not given any finding regarding the pleas taken by the first respondent herein. 25. In the judgment reported in (2003) 8 SCC 289 cited supra, the Honourable Supreme Court held that the courts of law should be careful enough to see that the diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them and such type of actions by the judgment debtor should not be encouraged and it would only cause delay and bring bad name to the judicial system. In the judgment reported in (2008) 3 MLJ 371 cited supra, this court has held that frivolous or vexatious proceedings will also amount to abuse of process of court and the court has got power to stop such proceedings summarily and prevent the time of the public and the court being wasted. In the judgment reported in 2006(1) CTC 526 cited supra, this court has held that the executing court should not allow the technicalities to come in the way of the decree holder enjoying the fruits of the decree and the court must favour possible execution and not deprive the rights of the decree holder on technical grounds. 26. Even though the learned counsel for the first respondent relied upon various judgments referred to above, according to me, those judgments cannot be applied to the facts of this case and having regard to the judgments of the Honourable Supreme Court and our High Court as stated above, in my opinion, the petition filed by the first respondent is a frivolous petition and it is a clear case of abuse of process of law. As stated earlier, the suit was filed in the year 1984 and decree was passed on 7.9.1998 confirmed in appeal on 9.3.2004 and confirmed by this court in Second Appeal on 27.6.2008. Even then, the decree holder is not able to take possession of the property. According to me, if such frivolous petitions were allowed to stand and thwart the rights of the decree holder in enjoying the fruits of the decree, the people will lose faith in the judiciary and as held by this court, the court must make an endeavour to execute the decree and should not be interested in dismissing the execution application on technical grounds. 27. In this case, the first respondent raised various pleas and they were negatived by the courts below and by this court in the second appeal and the same pleas are re- agitated in the execution proceedings which cannot be permitted. The executing court, without appreciating the same, erroneously held that the decree is indivisible and the judgment debtor/first respondent is a tenant and the decree cannot be executed against him. The findings of the executing court is liable to be set aside and it is set aside. The executing court, without appreciating the same, erroneously held that the decree is indivisible and the judgment debtor/first respondent is a tenant and the decree cannot be executed against him. The findings of the executing court is liable to be set aside and it is set aside. In the result, the civil revision petition is allowed with cost of Rs.3000/= payable by the first respondent to the revision petitioner.