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2014 DIGILAW 258 (MAD)

F. S. K. Ravikumar v. P. Umapathy

2014-02-04

P.R.SHIVAKUMAR

body2014
Judgment 1. The first defendant in the original suit in O.S.No.175/2009 on the file of the learned Subordinate Judge, Tirvallur is the petitioner in the revision petition. The plaintiff in the original suit is the first respondent in the revision petition. The other defendants in the original suit are the respondents 2 and 3 in the revision petition. 2. The above said suit in O.S.No.175/2009 was filed by Umpathy, the first respondent herein, against the revision petitioner and the respondents 2 and 3 herein, arraying them as defendants 1 to 3 respectively, for the relief of specific performance based on an agreement for sale dated 14.09.2006 executed in favour of the first respondent herein/plaintiff by the revision petitioner/first defendant in his capacity as the power agent of the respondents 2 and 3 herein/defendants 2 and 3. The first respondent had also prayed for permanent injunction not to alienate or encumber the suit property to third parties and not to interfere with the peaceful possession and enjoyment of the plaintiff in respect of the suit property of which, he came into possession originally as a tenant or from dispossessing him without following due process of law. 3. All the defendants remained ex-parte and after ex-parte trial, the learned trial judge decreed the suit as prayed for granting the reliefs as per the plaint prayer. A month's time was granted to the first respondent/plaintiff for depositing a sum of Rs.6,90,000/-, being the balance amount of sale consideration. The said decree came to be passed on 1.7.2010. Pursuant to the decree, in compliance with the direction regarding deposit of balance sale consideration, the first respondent/plaintiff deposited the said amount within the time granted by the court and levied execution by filing E.P.No.83/2010. 4. In the execution petition, after service of notice, the revision petitioner/first defendant entered appearance for himself and as power agent to the respondents 2 and 3. Three Execution Applications in E.A.Nos.92 to 94/2011 were filed in the name of all the judgment debtors, namely the revision petitioner herein and the respondents 2 and 3 herein, to permit the revision petitioner to act as power agent of the respondents 2 and 3 herein, to stay further proceedings in E.P.No.83/2010 and set aside the ex-parte order dated 12.07.2011 passed against the respondents 2 and 3 herein. 5. 5. The learned Subordinate Judge, Tiruvallur, after hearing both sides, dismissed all the three execution applications by a common order dated 13.02.2013. Subsequently, the court itself executed the sale deed in favour of the first respondent/plaintiff in accordance with the decree on behalf of the revision petitioner and respondents 2 and 3 herein on 03.07.2013. Meanwhile, the petitioner in the revision petition filed an application under Order IX Rule 13 CPC along with an application under Section 5 of the Limitation Act, 1963 on the trial side of the court below. The application under Section 5 of the Limitation Act, 1963 came to be taken on file as I.A.No.366/2011 in O.S.No.175/2009. In the supporting affidavit, the revision petitioner contended that the counsel engaged by him in the original suit did not take care to prepare and send the written statement for the signature of the revision petitioner as informed by him and that he came to know that an ex-parte decree had been passed on 01.07.2010, when he received a notice in the execution petition in E.P.No.84/2010. On the strength of the above said plea, the revision petitioner prayed for an order condoning the delay of 212 days in filing the application under Order IX Rule 13 CPC. 6. The said application was resisted by the first respondent herein/plaintiff on the basis of the averments made by him in his counter statement. The learned trial judge, after hearing both sides, came to the conclusion that the delay was not explained with acceptable reasons and based on that conclusion, dismissed the said application by order dated 13.02.2013. The said order is the subject matter of challenge in the present revision petition. 7. The submissions made by Mr. M.S. Subramanian, learned counsel for the revision petitioner and by Mr. M. Manivasagam, learned counsel for the respondents are heard. The materials produced in the form of typed set of papers are also perused. 8. It is an admitted fact that the suit was instituted on the basis of an agreement for sale executed by the revision petitioner herein in his capacity as power agent of the respondents 2 and 3 herein/defendants 2 and 3 in favour of the first respondent herein/plaintiff. 8. It is an admitted fact that the suit was instituted on the basis of an agreement for sale executed by the revision petitioner herein in his capacity as power agent of the respondents 2 and 3 herein/defendants 2 and 3 in favour of the first respondent herein/plaintiff. It is also not in dispute that the suit property, at the time of agreement, belonged to the defendants 2 and 3/respondents 2 and 3 and they did have a valid title, which could be transferred to the plaintiff in accordance with the agreement. It is also not in dispute that the respondents 2 and 3 herein, who figured as defendants 2 and 3 are the persons really interested in the subject matter of the suit and the revision petitioner/first defendant was made a party in the suit only in his capacity as power agent of defendants 2 and 3. Though in the cause title of the suit, it has not been stated that the revision petitioner/first defendant to be the power agent of defendants 2 and 3, it has been made clear in the body of the plaint that the revision petitioner herein/first defendant was made a party, because he had executed the suit sale agreement on behalf of the defendants 2 and 3 as their power agent. As such, it is quite clear that no decree for directing the revision petitioner herein/first defendant to do any act in his personal capacity has been prayed for and on the other hand, he had been arrayed as a party, since the suit was filed for enforcing the rights of the plaintiff under the suit agreement for sale against the defendants 2 and 3, who were represented by the revision petitioner as their power agent. 9. Strictly speaking the revision petitioner was made a party defendant by way of abundant caution. Though the decree has been passed directing all the defendants, including the revision petitioner to execute the sale deed in accordance with the suit sale agreement and in fact, in the execution proceedings, sale deed came to be executed by the court on behalf of the defendants 1 to 3, no property of the revision petitioner/first defendant was made the subject matter of the sale. The persons, who would be really affected and who would be interested in challenging the decree and the execution of the decree shall be the defendants 2 and 3, who are respondents 2 and 3 herein. 10. It is admitted by the learned counsel for the first respondent/decree holder that the decree has been fully satisfied by the execution of the sale deed by the court and nothing remains to be executed against the revision petitioner/first defendant. Learned counsel for the first respondent also submits that his party will file a full satisfaction memo before the executing court for the termination of the execution petition. It is brought to the notice of the court that though the respondents 2 and 3 (defendants 2 and 3) chose to file an application to set aside the ex-parte decree within the time, they had filed it with defects and hence the same was returned for re-presentation after rectification and that the said petition returned by the court below was not re-presented thereafter. 11. On the other hand, the revision petitioner/first defendant alone chose to file a separate application to set aside the ex-parte decree along with an application to condone the delay in filing the application under Order IX Rule 13 CPC. The learned counsel for the first respondent has pointed out the fact that though two sets of defendants chose to file separate applications to set aside the ex-parte decree, the defendants 2 and 3 did not re-present their application, which was returned pointing out certain defects and on the other hand, have made the petitioner herein to file the application under Order IX Rule 13 CPC along with the application under Section 5 of the Limitation Act, which shall be quite obvious from the fact that subsequent to the presentation of the interlocutory application concerned in this civil revision petition, the revision petitioner chose to file three applications on the execution side as E.A.Nos.92/2011, 93/2011 and 94/2011 not only for himself, but also representing his Principals, namely respondents 2 and 3. Of course this court is able to find the detour caused by the first respondent by making unnecessary averments in the counter statement. However, the first respondent herein has succeeded in showing that the revision petitioner, who has got no personal interest, is acting in collusion with the respondents 2 and 3. 12. Of course this court is able to find the detour caused by the first respondent by making unnecessary averments in the counter statement. However, the first respondent herein has succeeded in showing that the revision petitioner, who has got no personal interest, is acting in collusion with the respondents 2 and 3. 12. It is also brought to the notice of the court that the contention of the revision petitioner is conflicting and self-contradictory. In the application to condone delay in filing the application under Order IX Rule 13 CPC, he would try to project as if he could not be sued in his own name without showing him to be the agent of respondents 2 and 3 in the cause title and that he was not a necessary party in the suit filed against the defendants 2 and 3. At the same time, he would project himself to be entitled to proceed with the proceedings in the execution petition not only for himself, but also on behalf of the respondents 2 and 3 herein. The end result of the present stand taken by the revision petitioner shall be an attempt to stir the water and fish out of the troubled water. The said attempt made by the revision petitioner can be termed an attempt at abuse of process of court. Though not strictly for the reasons assigned by the learned trial judge, for the reasons stated above, this court comes to the conclusion that the order dismissing the application I.A.No.366/2011 in O.S.No.175/2009 does not deserve interference and the same deserves to be confirmed. In the result, the civil revision petition fails and hence the civil revision petition is dismissed. However, there shall be no order as to cost in the civil revision petition. Consequently, the connected miscellaneous petition is closed.