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Madras High Court · body

2012 DIGILAW 4279 (MAD)

K. Shanthakumari v. M. Rajagopal

2012-10-12

R.S.RAMANATHAN

body2012
Judgment The revision petitioner, who was impleaded as one of the legal representatives of the judgment debtor filed these three revision petitions against the orders passed in E.A.Nos.2449, 2450 and 3565 of 2010 in E.P.No.3353 of 1991 in O.S.No.522 of 1981 on the file of the IX Assistant Judge, City Civil Court, Chennai. 2. To appreciate the contentions raised in these revisions, a brief history of the facts is relevant. The suit in O.S.No.522 of 1981 was filed for specific performance of an agreement of sale against one Savithri Ammal by Mr. M. Rajagopal and that suit was decreed on 23.10.1981. The decree holder filed application to execute the decree for getting the sale deed and sale deed was also executed by the court as Judgment Debtor refused to execute the sale deed. Thereafter, E.P.No.3353 of 1991 was filed for delivery and delivery was ordered and that order was challenged in C.R.P.No.29 of 2012. During the pendency of the revision in C.R.P.No.29 of 2012, the Judgment Debtor Savithri Ammal passed away and her legal heirs viz., the present revision petitioner and others were impleaded and the said civil revision petition was dismissed. The petitioner and other legal representatives were also brought on record in the E.P. filed by the decree holder. Earlier to that, the Judgment Debtor Savithri Ammal filed E.A.No.5177 of 1992 under section 47 of the Code of Civil Procedure raising dispute regarding the boundaries and that application was dismissed and as against the same, C.R.P.No.3214 of 2001 was filed and that was also dismissed and thereafter, delivery was ordered in E.P.No.3353 of 1991. Thereafter, the revision petitioner filed E.A.No.416 of 2005 to declare her as obstructor and that application was filed under Order XXI Rule 97 of the Code of Civil Procedure and E.A.No.416 of 2005 was dismissed and aggrieved by the same, the revision petitioner filed A.S.No.300 of 2005 on the file of the Fast Track Court I, (Additional District and Sessions Court), Chennai. In that appeal, the revision petitioner also filed C.M.P.No.39 of 2005 for appointment of Advocate Commissioner and that application was dismissed and as against the same, C.R.P. NPD No.499 of 2006 was filed by the revision petitioner and that was also dismissed on 27.11.2006. In that appeal, the revision petitioner also filed C.M.P.No.39 of 2005 for appointment of Advocate Commissioner and that application was dismissed and as against the same, C.R.P. NPD No.499 of 2006 was filed by the revision petitioner and that was also dismissed on 27.11.2006. Later A.S.No.300 of 2005 filed against the order passed in E.A.No.416 of 2005 was also dismissed and against the same, revision petitioner filed S.A.No.937 of 2008 and the second appeal was also dismissed on 1.9.2008 and confirmed by the Honourable Supreme court in S.L.P.No.30405 of 2008 by order dated 6.1.2009. Having lost in all her attempts, the revision petitioner filed E.A.No.7814 of 2008 in E.A.No.416 of 2005 for direction directing the Bailiff to execute the warrant after precisely defining the boundary mentioned in the decree and that petition was allowed. Aggrieved by the same, the legal representatives of the decree holder/respondents herein filed revision in C.R.P.No.3264 of 2009 and that revision was disposed of by this court after holding that E.A.No.7814 of 2008 filed by the revision petitioner is misconceived one. Nevertheless, this court directed the executing court to proceed further in E.P.No.3353 of 1991, and further observed that if the executing court, at the time of executing the warrant receives a report form the Bailiff requiring the boundaries of the property mentioned in the decree to be defined by metes and bounds for facile and proper execution of the decree, then after consideration of the Bailiff's report, in right earnest, the court shall pass suitable and appropriate orders. This observation of this court made in the above revision was taken advantage of by the revision petitioner and she filed E.A.No.2449 of 2010 under section 144 of the Code of Civil Procedure to order for re-delivery of the petitioners property and filed E.A.No.2450 of 2010 for direction not to record delivery and also filed E.A.No.3565 of 2010 to issue subpoena to the Bailiff to produce the document of objection submitted by her and to give evidence about the mode of execution. These three applications were dismissed and aggrieved by the same, the present revisions are filed. 3. These three applications were dismissed and aggrieved by the same, the present revisions are filed. 3. Learned Senior Counsel for the revision petitioner submitted that under the guise of executing the decree for delivery, the bailiff with the connivance and collusion of the decree holders, demolished the property of the revision petitioner and also delivered that portion to the decree holders and despite the objection raised by the revision petitioner requesting the Bailiff to confine the execution to the schedule of property mentioned in the suit, the Bailiff exceeded his powers and demolished the superstructure and delivered the property of the revision petitioner and for that purpose only these applications are filed and without appreciating the same, the court below dismissed these applications as if the Bailiff has not exceeded his powers while effecting delivery and the court below also failed to appreciate the observation made in C.R.P.NPD No.3264 of 2009 wherein this court has directed the executing court to consider the report of the Bailiff if there is any dispute and hence, the petitions are to be allowed and the property of the revision petitioner which has been wrongly delivered to the decree holders are to be re-delivered to the revision petitioners. 4. According to me, the petitions were rightly dismissed by the executing court and this is a classic example of preventing the decree holders from realising the property though the decree was passed on 23.10.1981. As stated supra, the revision petitioner came to be impleaded as one of the legal representatives of the deceased judgment debtor in C.R.P. No.29 of 2002 and she also filed E.A.No.1850 of 2002 to implead herself as legal representative of the judgment debtor and that was allowed and the Judgment Debtor filed E.A.No.5171 of 1992 disputing the boundaries mentioned in the suit and that application was dismissed and later confirmed in C.R.P.NPD No.3214 of 2001. In the said application, the sketch of the property was marked as Ex.P4 and the contentions now raised by the revision petitioner in E.A.No.416 of 2005 were all raised in that application and the case of the Judgment Debtor was negatived and the application filed under section 47 of the Code of Civil Procedure by the Judgment Debtor was dismissed. In the said application, the sketch of the property was marked as Ex.P4 and the contentions now raised by the revision petitioner in E.A.No.416 of 2005 were all raised in that application and the case of the Judgment Debtor was negatived and the application filed under section 47 of the Code of Civil Procedure by the Judgment Debtor was dismissed. In E.A.No.416 of 2005, the present Judgment Debtor raised the very same points and that petition was rightly dismissed and aggrieved by the same, she also filed A.S.No.300 of 2005 and that appeal was also dismissed and confirmed in Second Appeal and also by the Supreme Court in S.L.P.No.30405 of 2008. However, during the pendency of A.S.No.300 of 2005, the revision petitioner filed C.R.P.No.39 of 2005 for appointment of Advocate Commissioner to identify the property and that application was dismissed and aggrieved by the same, the C.R.P. No.499 of 2006 was filed and that was also dismissed and while dismissing C.R.P. No.499 of 2006 this court held as follows:- "9. The point regarding the identification of the property was also raised in E.A.No.5171 of 1992 and application under Section 47 of C.P.C. In the said application, Ex.P.4 sketch had been marked. Even the points regarding the Koorchit Family Arrangement between the parties was also produced and all the contentious points now raised had been raised in E.A.No.5171 of 1992. After due consideration, petition filed under Section 47 C.P.C. was dismissed and the C.R.P.No.3214 of 2001 preferred against that order was also dismissed. It is to be noted that all the points raised now have been raised in the earlier proceedings under Section 47 C.P.C. While so, the petitioner reagitate the same point regarding the identification of the property raising boundary dispute." 5. Further, the learned Judge has dealt with all these issues in the above revision and the observations made by the learned Judge are as follows:- "10. In C.R.P.No.29 of 2002, the legal representatives of the Judgment Debtor were impleaded and that Civil Revision Petition was dismissed. Thereafter, the petitioner and other legal representatives have got themselves impleaded in E.P.No.3351 of 1991 and suffered an order of delivery. The petitioner, who suffered an order of delivery as the legal representative of the Judgment Debtor, turned round and filed an application under or. XXI, R.97 C.P.C. as an Obstructor to the Execution Petition. Thereafter, the petitioner and other legal representatives have got themselves impleaded in E.P.No.3351 of 1991 and suffered an order of delivery. The petitioner, who suffered an order of delivery as the legal representative of the Judgment Debtor, turned round and filed an application under or. XXI, R.97 C.P.C. as an Obstructor to the Execution Petition. It is contended that boundaries of the petition mentioned property is vague and that property settled in favour of the petitioner cannot be included. 11. Referring to the evidence and materials, the learned IX Assistant Judge held that the description of the Property tallies with four boundaries. Then lower court also observed that the court bailiff has reported that the Original D.No.59 has been changed as D.No.44/3 and the new Number is D.No.77 and the same has been shown in the petition schedule mentioned property. Referring to the Door Numbers and the report of the Court bailiff, the Learned Judge has rejected the petitioner's contention pointing out that the property within the stated four boundaries tallies with new D.No.77. In that context, the court has observed that the petitioner had not adduced any contrary evidence showing that the boundaries in the petition schedule mentioned property do not tally with new D.No.77 (Old D.No.44/3 and the earlier D.No.59). The observation of the Court that the petitioner has not produced the materials is only a passing observation made by the court. But, the court has arrived at a definite conclusion that there is no dispute or discrepancy regarding the identification of the property. The point raised by the petitioner to declare her as obstructor was negatived by the Executing Court holding that the petitioner could only claim through Judgment debtor." 6. Further, the learned Judge has rightly observed that the petitioner cannot have any claim as she was impleaded as legal representatives of the deceased Judgment Debtor and there is no dispute regarding the identity of the property and the application filed for appointment of advocate commissioner was dismissed. Therefore, there is no dispute regarding the identity of the property and when that property was sought to be delivered by the Bailiff, the revision petitioner, who is claiming through the Judgment Debtor, cannot object to the delivery and it is not open to the revision petitioner to contend that her property was also delivered alongwith the suit property. 7. Therefore, there is no dispute regarding the identity of the property and when that property was sought to be delivered by the Bailiff, the revision petitioner, who is claiming through the Judgment Debtor, cannot object to the delivery and it is not open to the revision petitioner to contend that her property was also delivered alongwith the suit property. 7. Further, though the revision petitioner contended that her property was also demolished and delivered along with the suit property and for that purpose she filed E.A. No.2449 of 2010 for directing re-delivery, she has not given any description of the property which was delivered alongwith the suit property to the decree holders. If really the revision petitioner's property was also delivered to the decree holders, the revision petitioner would have stated the extent of the property belonging to her which was delivered to the decree holders. In the application filed in E.A. No.2450 of 2010, she has not given any description of the property and it is only stated that her property has to be re-delivered without giving the extent of the property wrongly delivered to the decree holder. Further, the application filed in E.A. No.3565 of 2010 for issuance of subpoena to the Bailiff is also misconceived and rightly dismissed by the court below. 8. The revision petitioner, taking advantage of the observation made in C.R.P. NPD No.3264 of 2009, filed application for issuing subpoena to the Bailiff. According to me, a reading of the observation made by the learned Judge in C.R.P. NPD No.3264 of 2009 would also make it clear that no such direction was given by the court below to consider the objections filed by the revision petitioner while effecting delivery. The learned Judge has only observed that during executing of the warrant of delivery, if the Bailiff entertains any doubt about the identity of the property, he can submit a report to the court and on receipt of such report from the Bailiff, the court can pass appropriate orders. It is not the case of the revision petitioner that the Bailiff entertained any doubt regarding the identity of the property to be delivered or he submitted a report to the court asking for clarification. It is not the case of the revision petitioner that the Bailiff entertained any doubt regarding the identity of the property to be delivered or he submitted a report to the court asking for clarification. Therefore, in the absence of any such report given by the Bailiff asking for clarification with regard to the identity of the suit property, there is no need to issue subpoena to the Bailiff to produce the objection given by the revision petitioner and considering the same, the court below has rightly dismissed the application. 9. Further, E.A. No.2450 of 2010 was filed not to record delivery and having held that the petitioner is not entitled to re-delivery as prayed for in C.R.P. PD No.2449 of 2010, the petitioner is also not entitled to the relief of requesting the court not to record the delivery of the property in favour of the decree holders. 10. Therefore, in my opinion, it is a clear case of abuse of process of court and the legal representative of the judgment debtor successfully prevented the decree holders from enjoying the fruits of the decree and she successfully stalled the execution for more than thirty years. Hence, the civil revision petitions are dismissed with exemplary cost of Rs.10,000/= payable by the revision petitioner to respondents 2 to 5 jointly. The connected miscellaneous petition is also dismissed.