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2014 DIGILAW 1437 (MAD)

N. Subbiah v. N. Sundarrajan

2014-06-17

T.MATHIVANAN

body2014
Judgment 1. Invoking the provisions of Article 227 of the Constitution of India, the revision petitioner Mr. N. Subbiah has approached this Court with the memorandum of civil revision petition, in C.R.P.(NPD) (MD) No.2271 of 2013, to strike off the execution proceedings in E.P.No.34 of 2010 in O.S.No.209 of 2007, on the file of the learned District Munsif, Melur, Madurai District. 2. Another memorandum of civil revision petition in C.R.P.(NPD) (MD) No.43 of 2014 has been directed against the order of dismissal, dated 21.10.2013 and made in the execution application in E.A.No.29 of 2013 in E.P.No.34 of 2010 in O.S.No.209 of 2007, on the file of the learned District Munsif, Melur, Madurai District. 3. With the parties as well as the subject matter of both the memorandum of civil revision petitions are one and the same, they have been consolidated together, heard jointly and are being disposed of in this common order. 4. Mr. N. Sundarrajan, who is the sole respondent in C.R.P.(NPD) (MD) No.2271 of 2013 as well as the first respondent in C.R.P.(NPD) (MD) No.43 of 2014, had filed a suit in O.S.No.209 of 2007, as against Mr. N. Subbiah, who is the revision petitioner in C.R.P.(NPD) (MD) No.2271 of 2013 and the second respondent in C.R.P.(NPD) (MD) No.43 of 2014 as well as his wife Thangamayil, who is the third respondent in C.R.P.(NP.D) (MD) No.43 of 2013, on the file of the learned District Munsif, Melur, seeking the reliefs of mandatory injunction as well as the perpetual injunction. 5. In the said suit, the plaintiff has alleged that the defendants in the suit, who are the respondents 2 and 3 in C.R.P.(NPD) No.43 of 2014, had encroached upon his property by way of laying foundation and putting up of one feet wall measuring east west about 20 Feet and north south about 15 Feet in Survey No.709/7B2, measuring 0.08.50 Hectres, under Patta No.2273 in A. Vellalapatti Village, Melur Taluk, Madurai District, which has been described under A-Schedule. The encroached portion i.e., to the extent of 20 Feet X 15 Feet has been described under B-Schedule in the plaint. 6. The encroached portion i.e., to the extent of 20 Feet X 15 Feet has been described under B-Schedule in the plaint. 6. The plaintiff has claimed that the plaint A-Schedule property, which is classified as Punja land, is his ancestral property and that a registered partition was effected on 21.06.1949 between him and his elder brother Velu Velar and in pursuant to the said partition, the suit A-Schedule property was kept in common as a joint property of the plaintiff and his elder brother under C-Schedule specified in the partition deed. He has also stated that the suit property in A-Schedule, which has been described as C-Schedule in the above partition deed, had been in his joint possession and enjoyment and his elder brother as well. 7. While the plaintiff's elder brother was alive, his undivided half share in the plaint A-Schedule was purchased by the plaintiff and the possession was also delivered and after the purchase of his brother's half share, he had become the absolute owner of it's entirety. His elder brother had passed away 15 years before. Since the revision petitioner in C.R.P.(NPD) No.2271 of 2013 had encroached the plaint A-Schedule property to the extent of 20 Feet X 15 Feet, he was constrained to file the suit. 8. Apart from this, the plaintiff has also claimed that originally the A-Schedule property was comprised in Old Survey No.709/7B and subsequently it was sub-divided as 709/7B1 and 709/7B2. Now, the plaint A-Schedule property is covered by Survey No.709/7B2 and was registered in Patta No.2273 in his name. He has also stated that prior to the sub-division, the entire extent of land comprised in Survey No.709/7B was registered in the joint Patta No.2173 in the joint name of the plaintiff and one Rajeswari Aachi, who is the revision petitioner C.R.P. (NPD) No.43 of 2014. 9. The said suit in O.S.No.209 of 2007 was decreed ex parte on 04.03.2010. But, no reference is available on record to show as to whether the revision petitioner in C.R.P.(NPD)(MD) No.2271 of 2013, who is the first defendant in the suit, had ever made any attempt to set aside the ex parte decree, dated 04.03.2010. 10. On the strength of the said ex parte decree, the plaintiff Mr. But, no reference is available on record to show as to whether the revision petitioner in C.R.P.(NPD)(MD) No.2271 of 2013, who is the first defendant in the suit, had ever made any attempt to set aside the ex parte decree, dated 04.03.2010. 10. On the strength of the said ex parte decree, the plaintiff Mr. N. Sundarrajan has taken out the execution proceedings in E.P.No.34 of 2010, on the file of the learned District Munsif, Melur, wherein notice was served on the first defendant Mr. N. Subbiah, who is the revision petitioner in C.R.P.(NPD) (MD) No.2271 of 2013. However, he had not chosen to make his appearance and therefore an ex parte order was passed in the execution proceedings on 01.10.2010. 11. It appears that, in order to set aside this order, the revision petitioner Mr. N. Subbiah/first defendant has filed an execution application in E.A.No.28 of 2013, under Order XXI Rule 106 and Section 151 of the Code of Civil Procedure. That application was suitably resisted by the respondent/plaintiff by filing his counter affidavit, wherein he has stated that after passing of 29 months from the date of the ex parte order i.e., from 01.10.2010, the above said execution application was filed and therefore he has urged the Executing Court to dismiss that application. After hearing both sides, that application in E.A.No.28 of 2013 was dismissed on 16.07.2013. Admittedly, no appeal was preferred as against the said order of dismissal dated 16.07.2013 and made in E.A.No.28 of 2013 and therefore that order has become final. 12. In the meanwhile, the revision petitioner in C.R.P.(NPD)(MD) No.43 of 2014, Mrs. Rajeswari Aachi has filed a claim petition in E.A.No.29 of 2013, under Order XXI Rule 58 and Section 151 of the Code of Civil Procedure, in E.P.No.34 of 2010, wherein she has claimed that she is the absolute owner of the property described in the suit Schedule in O.S.No.209 of 2007 and therefore she has sought the relief of declaration to declare that the suit property is belonged to her. That petition was also vigorously contested by the respondent/plaintiff. After considering the submissions putforth on behalf of both sides, the Court of First Instance has proceeded to dismiss that petition on 21.10.2013. 13. That petition was also vigorously contested by the respondent/plaintiff. After considering the submissions putforth on behalf of both sides, the Court of First Instance has proceeded to dismiss that petition on 21.10.2013. 13. Having been failed in his attempt to set aside the ex parte order passed in the execution petition, the first defendant in the suit, who is the revision petitioner in C.R.P.(NPD) (MD) No.2271 of 2013, has approached this Court with the memorandum of civil revision petition to strike off the execution petition, for which he has invoked the provisions of Article 227 of the Constitution of India. 14. On coming to the memorandum of civil revision in C.R.P.(NPD) (MD) No.43 of 2014, having been aggrieved by the order of the Executing Court, dated 21.10.2013 and made in E.A.No.29 of 2013, rejecting her prayer seeking declaration that she is the absolute owner of the suit property, Rajeswari Aachi has preferred another memorandum of civil revision petition in C.R.P.(NPD) (MD) No.43 of 2014. 15. Heard both sides and perused the materials available on record. 16. Mr.Vallinayagam, learned counsel, in his opening argument, has adverted to that both the memorandum of civil revision petitions are not maintainable and therefore they are liable to be dismissed on the ground of maintainability. 17. In sofar as C.R.P.(NPD)(MD) No.2271 of 2013 is concerned, he has argued that the defendant in the suit in O.S.No.209 of 2007 had never made any attempt to set aside the ex parte decree and therefore the decree dated 04.03.2010 passed in the suit in O.S.No.209 of 2007 had become final and in order to prevent the respondent/decree holder from executing the decree, he had come forward with the memorandum of civil revision petition to strike off the execution proceedings with the assistance of the provisions of Article 227 of the Constitution of India. 18. He has also argued that what are all the contentions put-forth by the revision petitioner, who is the first defendant in the suit, should have been projected by him in the suit itself by way of filing his written statement, but he had not done so. 18. He has also argued that what are all the contentions put-forth by the revision petitioner, who is the first defendant in the suit, should have been projected by him in the suit itself by way of filing his written statement, but he had not done so. Further, he has maintained that the order dated 16.07.2013 and made in E.A.No.28 of 2013 in E.P.No.34 of 2010, which was filed by him to set aside the ex parte order in the execution proceedings was also not challenged and hence there is neither abuse of process of Court nor abuse of process of Law and under this circumstance the interference of this Court did not require and hence he has urged to dismiss the memorandum of civil revision petition in C.R.P.(NPD) (MD) No.2271 of 2013. 19. Secondly, the argument advanced by Mr. Vallinayagam in respect of C.R.P.(NPD) (MD) No.43 of 2014 is that since the impugned order was passed under Order XXI Rule 58 C.P.C., appeal alone would lie as envisaged under Sub-Rule 4 of Rule 58 of Order XXI C.P.C. 20. Since both the memorandum of civil revision petitions have been urged to dismiss on the sole ground of maintainability, facts of the case need not be traversed. 21. In sofar as C.R.P.(NPD) (MD) No.2271 of 2013 is concerned, the revision petitioner/first defendant has not made out any prima facie case of abuse of process of Court either in filing of the suit or in filing of the execution petition by the respondent/plaintiff. Article 227 of the Constitution of India enacts as under: 227. Power of Superintendence over all courts by the High Court.- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3)........ (4)........ 22. The material part of Article 227 substantially re-writes the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. (3)........ (4)........ 22. The material part of Article 227 substantially re-writes the provisions of Section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. In Waryam Singh v. Amarnath, reported in AIR 1954 SC 215 , a question, as to the nature of the power of superintendence conferred by the Article, was raised before the Honourable Apex Court. In support of this issue, a reference was made to Clause (2) to Article 227 saying that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. In the said decision, Das, J., has observed that: "We are unable to accept this contention because Clause (2) is expressed to be without prejudice to the generality of the provisions in Clause (1). Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of provisions of other laws conferring revisional jurisdiction on the High Court." 23. In this connection, it has to be remembered that Section 107 of the Government of India Act, 1915 was reproduced in the Government of India Act, 1935 as Section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court, which was not otherwise subject to appeal or revision. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is pertinent to note here that sub-section (2) to Section 224 of the 1935 Act has been omitted from Article 227. 24. Article 227 of the Constitution of India gives the High Court the power of superintendence over all the Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. The power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. 25. The power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. 25. As observed in Ram Dass v. Chandi, reported in AIR 2005 P & H 230, it is well-settled that jurisdiction of the High Court under Article 227 could be invoked only in cases where there is likelihood of failure of justice or the party is likely to suffer such an irreparable loss which cannot be repaired by an ordinary remedy provided by law. Similar view has been taken by the Honourable Apex Court in Laxmi Kant Chand Revichand v. Pratap Singh, reported in (1995) 7 JT (SC) 400 as well as in Ouseph Mahai v. M. Abdul Khadir, reported in AIR 2002 SC 110 . 26. On coming to the instant case on hand, nothing is available on record to show that there is likelihood of failure of justice and that the Executing Court has refused to exercise it's jurisdiction, which is ought to have been exercised. Under this circumstance, the relief sought for by the revision petitioner/first defendant in this memorandum of civil revision petition to strike off the execution petition is not maintainable and for this purpose, the provisions of Article 227 of the Constitution of India cannot be misused, because, the supervisory jurisdiction of the High Court is limited where interference qua an interlocutory order of a subordinate Court is concerned. It has to consider the question whether the said order was vitiated due to want of jurisdiction or trial Court had exceeded it's jurisdiction or order passed by it has resulted in failure of justice. This view has been supported by the Apex Court in Kokkanda B. Poondacha v. K.D.Ganapathi, reported in AIR 2011 SC 1353. 27. In sofar as C.R.P.(NPD) (MD) No.43 of 2014 is concerned, the execution application in E.A.No.29 of 2013 appears to have been filed under Order XXI Rule 58 and Section 151 of the Code of Civil Procedure, by the revision petitioner, seeking declaration. This application was dismissed by the learned District Munsif, Melur, on 21.10.2013. 28. Being aggrieved by the said order of dismissal, dated 21.10.2013, the revision petitioner has come forward with this memorandum of civil revision petition. 29. This application was dismissed by the learned District Munsif, Melur, on 21.10.2013. 28. Being aggrieved by the said order of dismissal, dated 21.10.2013, the revision petitioner has come forward with this memorandum of civil revision petition. 29. Sub-rule (4) to Rule 58 of Order XXI C.P.C., contemplates that: (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. 30. Under the old rule there is no right of appeal against an order allowing a claim petition under Order XXI Rule 58 C.P.C. The decree-holder must file a suit to get the order set aside. The Order made under Rule 58 Sub-Rule (4) amounts to decree and therefore an appeal lies against such order and the revision is not maintainable. This view has been backed by the decision in Syndicate Bank, Mysore v. B.Anuradha, reported in 1999 AIHC 618 (620) (Kant). 31. Keeping in view of the above proposition of law, this Court is of considered view that both the memorandum civil revision petitions are not maintainable and therefore they are deserve to be dismissed. 32. In the result, both the memorandum of civil revision petitions are dismissed on the ground of maintainability and the execution proceedings in E.P.No.34 of 2010 remains undisturbed and impugned order, dated 21.10.2013, passed in E.A.No.29 of 2013 in E.P.No.34 of 2010 in O.S.No.209 of 2007, on the file of the learned District Munsif, Melur, Madurai District, is confirmed. Consequently, connected miscellaneous petitions are closed. No costs.