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2014 DIGILAW 4536 (MAD)

U. Jinadoss v. D. Nagaraj

2014-12-08

K.RAVICHANDRA BAABU

body2014
JUDGMENT K. RAVICHANDRABAABU, J. 1. The petitioners are the defendants and the respondent is the plaintiff. The respondent filed O.S. No. 613 of 2014 on the file of 14th Assistant City Civil Court, Chennai for declaration that the suit schedule property is not part and parcel of the compromise decree, dated 17.12.2012 passed by the Lok Adalat, Chennai in Lok Adalat Case No. 392 of 2012 in O.S. No. 7927 of 2011 on the file of 14th Assistant City Civil Court; for permanent injunction restraining the defendants 1 to 5 from disturbing the possession and enjoyment of the suit property and for permanent injunction restraining the defendants from making the suit property suffer execution without exhausting the conditions stipulated in the decree in the Lok Adalat Case No. 392 of 2012 in O.S. No. 7927 of 2011 on the file of the 14th Assistant City Civil Court, Chennai. 2. The case of the plaintiff, in short, before the trial Court is as follows:- A deed of partnership was executed on 7.10.2010 between the plaintiff and the defendants. They also entered into a Memorandum of Understanding on 22.8.2011. The defendants 1 to 4 wanted to rescind from the partnership and claimed a sum of Rs. 1,14,00,000/- from the plaintiff. To adjust the abovesaid amount, a sum of Rs. 66 lakhs was adjusted by way of sale deed executed by the plaintiff in favour of the defendants 1 to 4, leaving the balance sum of Rs. 48 lakhs to be paid within 45 days from the date of the Memorandum of Understanding, dated 22.8.2011. On 19.11.2011, the plaintiff was forced to pay a sum of Rs. 25 lakhs by way of cash to the defendants 1 to 4 and two flats were also sold by the plaintiff adjusting to the tune of Rs. 28 lakhs in favour of the defendants 1 to 4. Not satisfied with the receipt of the total amount, the defendants put pressure on the plaintiff and hatched a conspiracy, which resulted in filing a criminal complaint on 10.11.2011 by the plaintiff. Thereafter, on 17.11.2011, a fresh compromise deed was created and during the pendency of the Memorandum of Understanding, the defendants filed a suit in O.S. No. 7927 of 2011 against the plaintiff for permanent injunction restraining the plaintiff herein from interfering with the business. When the abovesaid suit was pending, a compromise deed was executed on 17.11.2011. Thereafter, on 17.11.2011, a fresh compromise deed was created and during the pendency of the Memorandum of Understanding, the defendants filed a suit in O.S. No. 7927 of 2011 against the plaintiff for permanent injunction restraining the plaintiff herein from interfering with the business. When the abovesaid suit was pending, a compromise deed was executed on 17.11.2011. The plaintiff was forced to sign in the compromise deed. The matter was referred to Lok Adalat. The plaintiff was forced to sign the Memorandum of Compromise on 28.11.2012. The entire compromise memo was all imaginary calculation of the defendants and it cannot be accepted as a full-fledged and wholehearted compromise memo. Coupled with the compromise order of the Lok Adalat, dated 17.12.2012, the fifth defendant filed a suit in O.S. No. 82 of 2013 for the relief of specific performance directing the plaintiff to execute a sale deed in his favour. Suppressing the above suit for specific performance, the fifth defendant filed E.P. No. 4625 of 2013 before the City Civil Court. On 27.1.2014, the first hearing of the Execution Petition was taken up. The plaintiff entered appearance and however, the vakalat and counter were returned, saying that the plaintiff was already set ex-parte long back, as per the compromise decree of the Lok Adalat. The plaintiff also filed a suit before the District Munsif Court, Tambaram in O.S. No. 208 of 2013 for various reliefs. In the present execution proceedings, the plaintiff's residential premises was shown as schedule property. All the defendants cheated the plaintiff and prepared the compromise deed and Memorandum of Understanding, dated 17.12.2012, based on which, the Lok Adalat passed the order, where in also, the plaintiff was forced to sign in the Memorandum of Understanding, which was in English. The schedule property shown in the execution petition does not come under the Memorandum of Compromise which was filed in the Lok Adalat decree. 3. The petitioners herein (defendants) filed I.A. No. 3889 of 2014 in O.S. No. 613 of 2014, under Order 7 Rule 11 CPC to reject the plaint on the ground that the suit is barred by law and not at all maintainable and it is an abuse of process of law. It is their contention that the suit is barred under Order 21 Rule 58(2) CPC. 4. It is their contention that the suit is barred under Order 21 Rule 58(2) CPC. 4. The trial Court rejected the said application on the ground that when the validity of the decree itself is being questioned in the present suit, the same cannot be agitated before the execution Court. It is also pointed out by the trial Court that the plaintiff had approached the execution Court first as evident from plaint document No. 11 and after finding that he could not get the relief therein, he filed the present suit, since his property was attached. It is further pointed out by the Court below that the allegation as against the compromise decree, the Memorandum of Understanding, etc. averred in the plaint, can be appreciated only after completion of trial. Challenging the said order of the trial Court, the defendants have filed the present Civil Revision Petition. 5. Learned counsel for the petitioners submitted that the issues raised in the present suit, are barred, since those issues are to be raised only in the execution proceedings, as filing of separate suit is barred under Order 21 Rule 58(2) CPC. In support of his submission, he relied on a decision of this Court reported in Sumangali Finance vs. P. Ramalingam, 2013 (5) CTC 433 . 6. Per contra, learned counsel for the respondent submitted that this is not a money suit and the property sought to be attached and brought for sale, is a separate property not forming part of the suit property in O.S. No. 7927 of 2011. Order 21 Rule 58(2) CPC empowers filing of separate suit, since the application filed by the plaintiff before the execution Court was returned. When the decree itself is non-est, question of executing the same would not arise. Order 21 Rule 58(2) CPC has to be read along with the sub-rule (5) therein and therefore, the suit is maintainable. In support of his submissions, learned counsel for the respondent relied on a decision of the Honourable Supreme Court reported in Sushil Kumar Mehta vs. Gobind Ram Bohra, 1990 (1) SCC 193 and the judgment of the Honourable Supreme Court in Civil Appeal No. 776 of 2012, dated 20.01.2012. 7. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 8. 7. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 8. The respondent as plaintiff filed the present suit to declare that the suit schedule property is not forming part and parcel of the compromise decree, dated 17.12.2012 passed by the Lok Adalat in Case No. 392 of 2012 in O.S. No. 7927 of 2011 and for permanent injunction, as discussed supra. The said plaint is sought to be rejected by the defendants (petitioners herein) only on the ground that the suit is barred under Order 21 Rule 58(2) CPC, since the execution proceedings are pending in E.P. No. 4625 of 2013 to execute the decree passed in the Lok Adalat in Case No. 392 of 2012 in O.S. No. 7927 of 2011, where alone the present dispute can be raised. 9. Order 21 Rule 58(1), (2) and (5) CPC reads as follows:- “Order 21 – Execution of decrees and orders:- Rule 58 – Adjudication of claims to, or objections to attachment of property:- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained: Provided that no such claim or objection shall be entertained –– (a) Where, before the claim is preferred or objection is made, the property attached has already been sold. (b) Where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) to (4)…………… (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to be property in dispute but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.” 10. In this case, it is seen that the plaintiff has also approached the execution Court and filed a petition to set aside the order made in E.P. No. 4625 of 2013, dated 17.12.2013 by contending that the execution petition is not maintainable. It is also an admitted fact that such petition filed by the plaintiff, was returned by the execution Court by raising an objection as to how the petition is maintainable. Order 21 Rule 58(5) CPC contemplates that where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such refusal was made, may institute a suit and establish his right. Therefore, a combined reading of Order 21 Rule 58(2) CPC with sub-rule (5) would only show that the filing of the suit is not totally barred and on the other hand, it depends upon the circumstances as referred to under sub-rule (5) therein. Thus, it is not correct to say that there is a statutory bar in toto, for filing the suit. Whether the case of the plaintiff would come under the purview of Order 21 Rule 58(2) CPC or under Order 21 Rule 58(5) CPC, is certainly a question involving factual aspects of the matter, to be considered and decided after allowing the parties to go for trial by letting in evidence. Therefore, the defendants are not justified in saying that the suit is barred under Order 21 Rule 58 CPC. 11. Further, a careful perusal of the entire pleadings made by the plaintiff in the plaint would show that he is trying to question the Memorandum of Compromise as well as the Memorandum of Understanding referred to in the plaint, as an outcome of false promise, misrepresentation, undue influence and cheating. Therefore, it is the Court which passes the decree, has to consider and decide the present claim and not either by filing appeal or petition before the execution Court. 12. In the order of the Apex Court relied on by the learned counsel for the respondent in Civil Appeal No. 776 of 2012, dated 20.1.2012, the Honourable Supreme Court observed that a compromise forming the basis of the decree, can only be questioned before the same Court that recorded the compromise. 13. In this case, the plaintiff is not seeking to set aside the compromise decree. 13. In this case, the plaintiff is not seeking to set aside the compromise decree. On the other hand, he is contending that the suit schedule property is not forming part of the compromise decree and no execution proceedings can be initiated making the suit property to suffer due to such execution. Therefore, such issues involving factual aspects, have to be gone into by the same Court where the compromise decree was passed and hence, I find that the present plaint filed by the plaintiff cannot be rejected based on the grounds raised by the defendants. 14. Learned counsel for the respondent also relied on a decision of the Honourable Supreme Court reported in Sushil Kumar Mehta vs. Gobind Ram Bohra, 1990 (1) SCC 193 , to contend that a decree passed by a Court without jurisdiction over the subject matter, goes to the root of its exercise or jurisdiction and the decree passed by such Court is a nullity and is non-est. I do not find any relevance of the said decision to the facts and circumstances of the present case. 15. Learned counsel for the petitioners relied on a decision of this Court reported in Sumangali Finance vs. P. Ramalingam, 2013 (5) CTC 433 , to contend that the separate suit is barred, as the questions have to be adjudicated upon the execution proceedings as contemplated under Order 21 Rule 58(2) CPC. A perusal of the said decision would show that the same was made without reference to sub-rule (5) of Order 21 Rule 58 CPC, which I have discussed in detail supra. Therefore, the said decision is factually distinguishable. 16. In fact, Order 21 Rule 58(2) CPC only says that all questions have to be agitated and decided only in the same execution proceedings and not by separate suit. It does not say that separate suit is totally barred in any event. On the other hand, sub-rule (5) of Order 21 Rule 58 CPC contemplates filing of a separate suit under the circumstances stated therein. Therefore, there is no total statutory bar for filing the separate suit, as contended by the defendants. 17. Considering all the above aspects, I am of the view that the trial Court is justified in refusing to reject the plaint, with which, I find no illegality or irregularity. The Civil Revision Petition fails and the same is dismissed. No costs. Therefore, there is no total statutory bar for filing the separate suit, as contended by the defendants. 17. Considering all the above aspects, I am of the view that the trial Court is justified in refusing to reject the plaint, with which, I find no illegality or irregularity. The Civil Revision Petition fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.