Srirangam Club, A Registered Society v. Srirangam Municipal Council
2014-04-03
T.MATHIVANAN
body2014
DigiLaw.ai
ORDER This Memorandum of Civil Revision Petition has been directed against the fair and decreetal order, dated 15.04.2013 and made in EASR No.1462 of 2013 in E.P.No.280 of 2011 in O.S.No.3077 of 2004 on the file of the learned Principal District Munsif, Trichy. 2. The revision petitioner herein is the Judgment Debtor in the suit O.S.No.3077 of 2004 on the file of the learned Principal District Munsif, Trichy, whereas the respondent herein is the Plaintiff/Decree Holder. 3. It is manifested from the records that the respondent herein viz., Srirangam Municipal Council, represented by its Executive Authority had originally filed a suit in O.S.No.57 of 1982 for the following reliefs:- "(i) For delivery of possession of the suit property specified in the plaint A schedule; (ii) For payment of Rs.32,000/- as damages for use and occupation in respect of the suit property for the period from 23.06.1979 till the date of the plaint, as contended by the revision petitioner/Judgment Debtor to the plaintiff at the rate of Rs.1,000/- per month; [iii] For damages of use and occupation from the date of the plaint, till the date of delivery of possession of the suit property by the revision petitioner/Judgment Debtor to the respondent/Decree Holder at the above rate and also for costs." 4. The suit was contested by the revision petitioner/Judgment Debtor. Then, it appears that the above suit was transferred to the file of the learned Principal District Munsif, Tiruchirapalli from the file of the learned Subordinate Judge, Tiruchirapalli on jurisdiction point of view. Despite strenuous contest, the suit was decreed on 28.04.2011. Impugning the decree and judgment, dated 28.04.2011, the revision petitioner/Judgment Debtor had preferred an appeal on the file of the learned I Additional Subordinate Judge, Trichy in A.S.No.168 of 2011. That appeal was dismissed for non prosecution on 17.06.2013. 5. As it is revealed from the averments and the grounds of the revision petition, the revision petitioner/Judgment Debtor was said to have filed an application for restoration of the appeal, but the fact of that application has not been disclosed. In the meanwhile, based on the strength of the decree obtained in the above suit, the respondent/Decree Holder had initiated Execution Proceedings in E.P.No.280 of 2011.
In the meanwhile, based on the strength of the decree obtained in the above suit, the respondent/Decree Holder had initiated Execution Proceedings in E.P.No.280 of 2011. During the pendency of the said execution proceedings, the revision petitioner/Judgment Debtor had filed an application under section 47 of the Code of Civil Procedure, questioning the decree, dated 28.04.2011 passed by the learned Principal District Munsif, Tiruchirapalli on the ground that "on 31.03.1994, the Governor of Tamil Nadu had exercised the power conferred under section 4 of Tamil Nadu District Municipalities Act, 1920 and a Government Order was notified, including Srirangam Municipality areas to Trichirappalli Municipality. Hence, the respondent Municipal Council ceased to be in existence, vide G.O.dated 31.04.1994 and that the continuation of the proceedings under Srirangam Municipal Council is illegal and void, as Srirangam Municipality was amalgamated with the Trichy Corporation. 6. That application was rejected by the Court of first instance on the ground that the decree passed in O.S.No.3077 of 2004 could not be challenged on technical grounds and that the execution of the decree, dated 28.04.2011 would not in anyway cause prejudice to the revision petitioner/Judgment Debtor. Impugning the said order of rejection, the present revision has been filed by the revision petitioner/Judgment Debtor. 7. Heard Mr.T.A.Punithan, learned counsel appearing for the revision petitioner and Mr.L.Madhusudhanan, learned counsel appearing for the respondent. 8. The only ground projected by Mr.T.A.Punithan, learned counsel for the revision petitioner is that Trichy Municipal Corporation had deliberately failed to take steps to implead itself as a party and therefore, the decree, which was passed in favour of a non-existing person is a nullity and could not be executed at all. 9. He has also argued that after Trichy was transmogrified to a Corporation, all the areas included under Trichirappalli Municipality were added to Trichy Corporation giving perpetual succession. In accordance with section 3(3) of Tamil Nadu Municipal Corporation Act, 1994, Trichirappalli Municipality was abolished with immediate effect and therefore, Trichy Corporation was ceased to be a separate juridical person with immediate effect of the Act. 10. He has also added that the respondent Srirangam Municipality is not having any nexus to continue the execution proceedings as the suit itself was abated in accordance with section 3(3) of Trichirappalli Municipality Act. 11.
10. He has also added that the respondent Srirangam Municipality is not having any nexus to continue the execution proceedings as the suit itself was abated in accordance with section 3(3) of Trichirappalli Municipality Act. 11. According to Mr.T.A.Punithan, learned counsel for the revision petitioner, since Srirangam Municipality was dissolved on 31.03.2014, it must be construed as a dead person and therefore, the suit had become abated. He has also made reference to the provisions of Order 22 Rule 4 of CPC. 12. On the other hand, Mr.L.Mathusuthanan, learned counsel appearing for the respondent/Decree Holder, while dismissing the argument advanced by Mr.T.A.Punithan, has adverted to that the argument with reference to the contention that Trichy Corporation has no juridical relationship to execute the decree, which was decreed in favour of Srirangam Municipal Council, did not arise because of the amalgamation and upgradation of Trichy Corporation in the year 1984, which would automatically give raise to the Trichy Corporation to execute the decree in the name of Srirangam Municipality 13. In this connection, it may be relevant to make reference to section 9(4) of the The Tiruchirappalli City Municipalities Corporation Act No.27 of 1994 which enacts as under:- "(4)All proceedings taken by or against, the council or authority of any person under the District Municipalities Act, may be continued by, or against, the corporation, authority or person as if the said proceedings has been commenced under the provisions of this Act. 14. In this connection, he would submit that in pursuant to the provision of clause 4 of section 9 of the Act 27 of 1994 of the Tiruchirappalli City Municipalities Corporation Act, 1994, Trichy Corporation had been stepping into the shoes of Srirangam Municipality and executing the decree as successor with statutory approval. Merely because of the formation of the Corporation, it did not require to amend all the decrees made in favour of Srirangam Municipality and that the Corporation of Trichy was bound by the decree passed against Srirangam municipality. 15. It may also be relevant to make reference to sub clause (h) and (i) of section 373 of the Tamil Nadu District Municipalities Act, 1920. 16. Sub clause (h) contemplates that:- "All proceedings pending immediately before the specified date before the township committee shall be deemed to be transferred to and be continued before the municipality or [Third Grade Municipality]; 17.
16. Sub clause (h) contemplates that:- "All proceedings pending immediately before the specified date before the township committee shall be deemed to be transferred to and be continued before the municipality or [Third Grade Municipality]; 17. Sub Clause (i) envisages that:- "All appeals pending immediately before the specified date before the township committee shall, so far as may be practicable, be disposed of as if such local area had been included in the municipality or [Third Grade Municipality] when they were filed." 18. On taking into consideration of cumulative effects of facts and the submissions of both the learned counsels, this court would like to have reference to section 99 as well as 152 of the Code of Civil Procedure. 19. Section 99 contemplates that:- "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court." 20. Similarly section 152 also says that :- "Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Court either of its own motion or on the application of any of the parties." 21. From the language of section 152 of the Code of Civil Procedure Code, it is thus made clear that the court is empowered to correct its own error in a judgment, decree or order from any accidental slip or omission. The principle behind the said provision is actus curiae nemenim gravabit i.e., nobody shall be prejudiced by an act of Court. This proposition is laid down inNiyamat Ali Molla vs. Sonargon HSG Co-op Society Ltd. 2008(1)CTC 161 (SC): 2007(13)SCC 421; AIR 2008 SC 225 ; 2008(1) MLJ 1268 (SC)]. 22. The above said provisions of sections 99 and 152 of the Code of Civil Procedure have crystallized that any error or irregularity never cause great impact to reverse or modify the decree. 23.
22. The above said provisions of sections 99 and 152 of the Code of Civil Procedure have crystallized that any error or irregularity never cause great impact to reverse or modify the decree. 23. Mr.T.A.Punithan, learned counsel appearing for the petitioner has also pointed out that as envisaged under Rules 143 of the Code of Civil Procedure, if any question arises for the determination of the Court executing a decree, the same shall be heard and determined upon the hearing of the petitions or on application made therein and if evidence is taken orally, the Court shall record the evidence of the witness and mark all exhibits admitted in evidence in accordance with Rules 4 and 9 of Order XVII of the Code and that the court shall in any case, record its judgment and draw up its order, in the same manner as upon the hearing of the suit. 24. On coming to the instant case of hand, the court of first instance has rejected the application in EASR No.1462 of 2013 on a single line that the decree passed in O.S.No.3077 of 2014 could not be termed as nullity or on technical ground and therefore, the provisions of 47 of the Code of Civil Procedure could not be taken umbrage. 25. It is revealed from the records that the Execution Petition in EASA No.1462 of 2013 was rejected on 15.04.2013 and delivery was ordered on 15.04.2013 in E.P.No.280 of 2011. 26. It is also brought to the notice of this court that eviction was ordered in the year 2001 and delivery was ordered in the year 2010 and delivery was effected on 12.09.2013. 27. Mr.S.L.Madhusuthanan, learned counsel appearing for the respondent has also placed reliance upon the decision of this court in Padmavathi vs. Kaveriammal [2009(1)CTC 58], wherein it is held that it is well settled that executing court cannot go behind the decree, unless the court which passed decree suffered by lack of jurisdiction, which will make it a nullity. Even if the decree is considered to be an illegal one, remedy open to party aggrieved is to approach higher forum, if same was passed by the court of competent jurisdiction. 28.
Even if the decree is considered to be an illegal one, remedy open to party aggrieved is to approach higher forum, if same was passed by the court of competent jurisdiction. 28. On coming to the instant case on hand, this court finds that impugned order is found to be intact and in accordance with the law and therefore, it does not require any interference of this court as the court of first instance cannot go behind the decree, as the revision petitioner/Judgment Debtor cannot question the decree on the ground of nullity taking umbrage under section 47 of the Code of Civil Procedure. 29. In the result, this civil revision petition is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.