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2012 DIGILAW 452 (MAD)

S. v. Nageswaran VS R. T. Gurumurthy

2012-01-30

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This revision is directed against the order of the learned X Assistant Judge, City Civil Court, Chennai passed in E.P.No.2324 of 2009 in O.S.No.2395 of 1966 dated 21.06.2010. 2. The revision petitioner herein is the judgment debtor in E.P.No.2324 of 2009. The respondents who are the decree holders in O.S.No.2395 of 1966 sought for delivery of possession of the suit property as described in the execution petition as per the final decree passed in O.S.No.2395 of 1966. The petitioners are the legal representatives of the deceased first plaintiff and they are pursuing the decree after the death of the first plaintiff and subsequently, the second plaintiff.The judgment debtor is the legal representative of the deceased judgment debtor namely Pattu Sasthri, who is now in the occupation of the suitproperty. The request of the petitioners/decree holders is, for delivery of possession of schedule mentioned property of an extent of 2000 sq.ft as detailed in Ex.C2, Commissioner's sketch under Order 21 Rule 35 CPC. However, the respondent had raised the objections in the form of counter affidavit that the first plaintiff R.V.Thirunavukarasu died and therefore, his wife T.Lakshmi Ammal, R.T.Gurumoorthy and T.M.Thilagavathy were brought on record as legal representatives of the said Thirunavukarasu. During 2006, the said Lakshmi Ammal passed away and however, her legal representatives were not brought on record within the stipulated period of 90 days. Therefore, nothing survives in the E.P., without amending the cause title, since it is more than three years. The appeal itself would be deemed to have been abated and therefore, the petitioners are not entitled to file the E.P. 3. It is also contended that the revision petitioner/respondents is in possession and enjoyment of the property for over 50 years and the petitioners never stepped into the property. Three years ago, the respondent demolished the old building after obtaining sanctioned plan for demolition and re-construction from the Corporation and accordingly, he constructed 3 storeyed building in the suit property. The petitioners who were well aware of the construction kept quiet without taking any action to stop the construction. The petitioners are estopped from claiming over the property since their right in the property has been extinguished. Therefore, the respondent prayed for the dismissal of the E.P. 4. The petitioners who were well aware of the construction kept quiet without taking any action to stop the construction. The petitioners are estopped from claiming over the property since their right in the property has been extinguished. Therefore, the respondent prayed for the dismissal of the E.P. 4. The learned X Assistant Judge, City Civil Court, Chennai had heard both sides contentions and arguments and had come to the conclusion of allowing the petition and ordered delivery returnable by 14.07.2010. 5. Aggrieved by such an order of the learned X Assistant Judge, City Civil Court, Chennai, the present revision has been launched. 6. Heard Mr.T.Murugesan, learned Senior Counsel appearing on behalf of M/s.Pushpa Sathyanarayana, the learned counsel for the revision petitioner/judgment debtor and Mr.S.Senthilnathan, learned counsel for the petitioners/decree holder. 7. The learned Senior Counsel would submit in his argument that the objections raised by the revision petitioner before the execution Court that the legal heirs of the deceased Lakshmi Ammal were not brought on record and nothing will survive without impleading legal representatives was not considered by the lower Court. He would further submit that the description of schedule mentioned property was not given correctly in the execution petition. However, the lower Court had held that such description of schedule property does not matter and the length and breadth of the suit property are not necessary for delivery of the property, which is patently wrong. The description of the property in the E.P. schedule was not in confirmity with the plaint schedule, however, the Execution Court had ordered for delivery of the property. The learned Senior Counsel would also submit that the discussion of this Court made in S.A.No.523 of 1973 regarding the property purchased by the respondents' father should have been allotted to him should also be accommodated within the share of Kuppusamy Naicker, which has not been considered. He would further submit that the said accommodation of the respondent's predecessor's in title, sharepurchased from Kuppusamy Naicker has to be accommodated and thereafter, the decree has to be executed was not followed by the Execution Court. He would further submit that the said accommodation of the respondent's predecessor's in title, sharepurchased from Kuppusamy Naicker has to be accommodated and thereafter, the decree has to be executed was not followed by the Execution Court. He would also submit that it was subsequently brought to the notice of the Court that Kuppusamy Naicker had already sold the property and therefore, the petitioner predecessor in title namely Thirunavukarasu Mudaliar will not get any property and therefore, the decree is inexecutable, and the said position was not considered by the lower Court. He would further submit that since the execution Court cannot go beyond the decree, it has to accommodate the property left to the share of the respondent and thereafter only to make delivery of the property described in the decree. He would also submit that since the property described in the execution petition is not in confirmity with the plaint schedule, there cannot be any delivery order to be passed by the execution Court. He would further submit in his argument that the property sought to be executed is not the property purchased from Kuppusamy Naicker through Ex.A1 and the extent of property namely 15 cents was not shown as the property to be delivered. The execution Court had not compared the schedule of the final decree with that of the preliminary decree and therefore, the delivery order passed by the lower Court is liable to be set aside. He would also submit that the Commissioner appointed in the earlier proceedings in between the same parties had filed the report and the said report and the sketch are not containing necessary particulars to identify the suit property to be delivered and therefore, the execution petition ought to have been dismissed by the lower Court but the same was allowed, which is contrary to the facts and law. He would also rely upon the judgment of the Hon'ble Apex Court reported in 2010 (3) LW 107 (Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and others) in support of his argument regarding the period of limitation. He would further submit in his argument that the execution Court who is empowered to execute the decree as per the decree passed by the Trial Court cannot over stretch its remedy to grant the property which has not been in confirmity with the property contained in the decree. He would further submit in his argument that the execution Court who is empowered to execute the decree as per the decree passed by the Trial Court cannot over stretch its remedy to grant the property which has not been in confirmity with the property contained in the decree. Therefore, he would request the Court to interfere and set aside the order passed by the lower Court and consequently to dismiss the E.P., and thus the Civil Revision Petition may be allowed. 8. The learned counsel for the respondents/decree holder would submit in his argument that the period of limitation for impleading the legal representatives of the deceased second plaintiff will not arise for execution proceedings and the Limitation Act is not applicable for execution petitions. Apart from that, the legal representative were already on record and therefore, there is no formality required for impleading legal representative of the second plaintiff to the proceedings and therefore, there is no infirmity in continuing the proceedings. He would further submit that the law of limitation will not apply even as per the judgment of Hon'ble Apex Court reported in 2010 (3) LW 107 (Shub Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna and others). 9. He would further submit in his argument that the description of the property mentioned in the execution petition would clearly identify the property decreed in favour of the plaintiff in the partition suit. It has been categorically decided in the proceedings of the preliminary decree, the Courts have held that the extent of the property to be allotted to the plaintiffs would be 2000 sq.ft., measuring 80 feet east-west 25 ft North-South on the south western corner of the entire property and it became final. The property as decreed in the preliminary decree on its south-west corner was identified in the final decree proceedings as the property lying on the south of common passage, and east of the road running north-south. He would also submit that it has been clearly mentioned in Commissioner's report and sketch filed in the final decree proceedings regarding the property to be allotted to the plaintiff in the execution petition and the same has been described in the execution petition as referred to in the Commissioner's sketch filed in final decree proceedings. He would also submit that it has been clearly mentioned in Commissioner's report and sketch filed in the final decree proceedings regarding the property to be allotted to the plaintiff in the execution petition and the same has been described in the execution petition as referred to in the Commissioner's sketch filed in final decree proceedings. He would therefore, submit that there is no confusion regarding identity of the property described in the execution petition with the property in the decree. He would also submit that the contentions were raised by the petitioner/judgment debtor in order to protract the proceedings as far as possible since he does not want to part with the property in his possession and for that purpose only, the execution proceedings are being prolonged. He would further submit in his argument that the final decree proceedings have also been taken by the respondent upto Supreme Court of India and it was finally decided that the final decree passed by the Trial Court was confirmed throughout and the described property with final decree alone was described in the execution petition. He would further submit in his argument that the principle as put forth by the learned counsel for the petitioner that the execution Court cannot go beyond the decree is perfectly alright and the property decreed was only described in execution petition. He would further submit that the execution Court, after appraising all these facts and circumstances of the case and after going through the orders passed in the final decree proceeding and the preliminary decree proceedings, found that the petitioner/judgment debtor's case was not true. He would also submit that the judgment passed by the Competent Court is executable and only the Courts which are not having jurisdiction had passed the decree alone, cannot be executed. He would further submit that the decrees passed in this case, both preliminary as well as final decree were confirmed, the Supreme Court of India and it was found that the courts are having jurisdiction to try the suit and therefore, the question of jurisdiction cannot be raised at this stage for the dismissal of the E.P., on the question of inexecutability. He would therefore submit in his argument to dismiss the revision as vexatious and to award exemplary costs. 10. I have given anxious thoughts to the arguments advanced on either side. 11. He would therefore submit in his argument to dismiss the revision as vexatious and to award exemplary costs. 10. I have given anxious thoughts to the arguments advanced on either side. 11. The suit was originally filed by the decree holders' father one Thirunavukarasu on the foot of his purchase of the property from one Kuppusamy Naicker. The suit property was, an extent of 5 1/4 cents in a particular survey number measuring east-west 80 ft, north-south 25 ft. In the preliminary decree, it has been ordered for allotment of the said property, in favour of the plaintiff. The said preliminary decree was qualified before Supreme Court of India and it was confirmed. Subsequently, the final decree proceedings have been launched. In the said final decree proceedings, the property purchased by the decree holders' predecessor in title Thirunavukarasu Mudaliar of an extent of 5 1/4 cents measuring 80 feet X 25 feet were found only as 2000 sq.ft. The Court, at the time of passing final decree had come to the conclusion that the extent described as 5 1/4 cents is a mistake, since the measurement on all the sides have been given as 80 feet X 25 feet, and such measurement will prevail over the extent of 5 ¼ cents. It has been categorically thus held that the plaintiff/decree holder was entitled to a total extent area of 2000 sq.ft. The Court had decided in the final decree proceedings that it should be allotted to the petitioners in the south-west corner of the entire property. The said decision was questioned and it was confirmed by Hon'ble Supreme Court of India. Therefore, there is no confusion regarding the property to which it has to be delivered towards the share of the petitioners'/decree holder. In the execution petition, it has been categorically stated in the schedule of the property as described in the sketch of the Commissioner filed in the final decree proceedings. Therefore, there is no question of any ambiguity in the description of the property and there is no difference in between the property described in the execution petition as well as the property ordered to be delivered in the final decree. 12. As regards the limitation point is concerned, the second plaintiff was impleaded along with the 3rd and 4th plaintiffs as legal representatives of the 1st plaintiff. 12. As regards the limitation point is concerned, the second plaintiff was impleaded along with the 3rd and 4th plaintiffs as legal representatives of the 1st plaintiff. Now, it has been stated that the 2nd plaintiff was also dead. No doubt, the plaintiffs 3 and 4 are the decree holders, who were already on record and therefore, there is no question of any abatement regarding the claim of the plaintiff. Further more, there cannot be any application of limitation for impleading the legal representatives in the execution proceedings. Therefore, the law of limitation as sought for by the petitioner/respondent will not be helpful to him. Similarly, for objection raised regarding the inexecutability of the decree, the judgment of Hon'ble Apex Court reported in (2004) 1 SCC 287 (Rafique Bibi (dead) by LRs v. Sayed Waliuddin (Dead) by LRs and others would come into operation. The relevant portion of the judgment would run as follows:- "7.) Two things must be clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results." (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p.308.) Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. "The order of a superior court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abundoned owing to the expiry of a time-limit. 8.) A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. 8.) A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." 13. According to the said dictum laid down by the Hon'ble Apex Court that the inexecutability of the decrees will arise, if the decree is found to have been null and void. As far as this case is concerned, the preliminary decree passed by the lower Court was upheld by Hon'ble Supreme Court of India in S.L.P.No.2086 of 1978. Similarly, the final decree passed by the Trial Court was also found confirmed by the Hon'ble Supreme Court in S.L.P.No.7479 of 2003, by dismissing the SLP on 15.04.2005. In the said circumstance, there is no question of any defective jurisdiction to hold that the decree sought to be executed before the execution Court was null and void. In the said circumstances, the execution Court has acted within its limits and scope and jurisdiction. It is no doubt true, that the execution Court cannot go beyond the decree and the delivery order passed by the learned X Assistant Judge, City Civil Court, Chennai is also within the scope of the decree. The contentions raised by the revision petitioner/respondent in the counter that he had put up construction to three storied building after obtaining proper permission of the Corporation would not improve his case in any way since any activity done by the parties during the litigation period are done subject to the result of such litigation. The said activities of the petitioners were done while the litigations are pending in between parties and the revision petitioner/respondent knowing fully well that any order could be passed in the execution proceedings. The said activities of the petitioners were done while the litigations are pending in between parties and the revision petitioner/respondent knowing fully well that any order could be passed in the execution proceedings. The petitioner ought not to have done such improvements since he was aware of the property is likely to be ordered delivery in favour of the decree holders. The alleged improvement in the property mentioned during the execution petition proceedings were done in 'pendent lite' and therefore, it will not rescue the petitioner from ordering delivery of the petition mentioned property. Therefore, I have no reason to interfere with the order passed by the learned X Assistant Judge, City Civil Court, Chennai in ordering delivery of the property in favour of the respondent/petitioner in the E.P. 14. In fine, the revision petition is dismissed with costs, confirming the order passed by the learned X Assistant Judge, City Civil Court, Chennai. Consequently, connected miscellaneous petition is closed. 15. The lower Court is directed to fix the date of delivery, after receipt of a copy of this order.