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Madras High Court · body

2017 DIGILAW 2137 (MAD)

Jeyamani (Died) v. S. V. Saroja

2017-07-20

T.RAVINDRAN

body2017
ORDER : 1. In this civil revision petition, the order dated 08.12.2005, in E.A.No.193 of 2002 in E.A.No.114 of 2001 in E.P.No.161 of 1993 in O.S.No.91 of 1988, is impugned. 2. For easy reference, the parties may be referred to as “the revision petitioner” and “the respondents”, even though some of the parties died and their legal representatives have been brought on record. 3. It is found that E.A.No.193 of 2002 has been preferred by the revision petitioner, according to him, who is a third party to the execution proceedings in E.P.No.161 of 1993. 4. As seen from the records, it is found that the first respondent in E.A.No.193 of 2002 has suffered a decree in O.S.No.91 of 1988 and inasmuch as the first respondent did not comply with the terms of the decree suffered by her in the above mentioned suit, it is found that the second respondent has levied the execution proceedings in E.P.No.161 of 1993 for proceeding against the property of the judgment-debtor, which had been already attached before Judgment in the suit as per Order XXI Rule 66 of the Code of Civil Procedure. It is also noted that the suit property has come to be attached during the course of the suit proceedings in I.A.No.116 of 1988 on 31.01.1988 and the said attachment has also been made absolute on 18.01.1989. It is further found that the judgment-debtor contested the execution proceedings as such and it is seen that after the settlement of terms of proclamation and when the property involved in the execution proceedings was brought to sale, the judgment-debtor in order to stall the same had been making periodical part payments towards the decreetal amount. However, at one stage of the matter, inasmuch as the judgment-debtor had failed to pay the amount in terms of the decree passed against him, it is found that the property was brought for sale and thereafter, after due process, it is found that finally the property was put in auction and accordingly, it is found that the third respondent in E.A.No.193 of 2002 has purchased the property in the Court auction on 07.02.2000 by paying the amount and it is also noted that the sale had been confirmed in his favour and by way of the above process, it is found that the decree-holder has realized the amount due to him as per the terms of the decree. 5. Pursuant to the confirmation of the sale in his favour, it is noted that the third respondent has preferred an application in the execution proceedings in E.A.No.114 of 2001, under Order XXI Rule 95 C.P.C., praying for the delivery of possession of the property purchased by him during the Court auction sale. Pending the above said application, it is found that the revision petitioner has preferred E.A.No.193 of 2002, under Order XXI Rule 96 and Section 151 C.P.C., contending and also praying for the reasons mentioned in his petition that inasmuch as he is in possession of the property as a tenant under the judgment-debtor from 1986 onwards under the Lease Deed executed between him and the judgment-debtor and according to the revision petitioner, he has paid a sum of Rs.3,00,000/- towards advance to the judgment-debtor and further according to him, the above said lease arrangement has been extended periodically and it is his case that as agreed to between the above said parties, the lease arrangement was finally renewed on 01.04.2001 till 31.03.2006 and the rent had also been enhanced to Rs.2,935/- and therefore, according to the revision petitioner, he has been all along in the possession of the property by conducting a hotel business therein and also by paying electricity charges and other charges and while so, according to the revision petitioner, knowing fully well that the property involved in the execution proceedings is in his possession and enjoyment, suppressing the same it is found that the execution proceedings have been levied and the property had been brought for sale and as his possession is sought to be interfered with by the auction purchaser, he has been necessitated to file E.A.No.193 of 2002 for appropriate reliefs. It is also the case of the revision petitioner that he has also preferred a suit in O.S.No.65 of 2002 against the respondents to restrain them from interfering with his possession and enjoyment of the property unlawfully and further according to the revision petitioner, the judgment-debtor had also mortgaged the property to a third party and had received a sum of Rs.3,00,000/- and it is his further case that the judgment-debtor had assigned / made over the mortgage deed in favour of the revision petitioner by receiving the above mentioned sum. Further, it is stated that he has also paid Rs.1,80,000/- to the first respondent / judgment ? debtor in instalments. Further, it is stated that he has also paid Rs.1,80,000/- to the first respondent / judgment ? debtor in instalments. Therefore, according to the revision petitioner, in toto he has paid a sum of Rs.7,30,000/- to the judgment-debtor inclusive of the advance amount as already adverted to and in such view of the matter, it is his case that his possession should not be disturbed by the auction purchaser and therefore, according to him, the auction purchaser is only entitled to obtain symbolic delivery and not actual delivery of the property and therefore, requested the Court to pass appropriate orders in that regard. 6. The above said application has been seriously resisted by the decree-holder and the auction purchaser by filing counter affidavits and their specific case is that it is false to state that the revision petitioner has been in the possession and occupation of the property under a lease arrangement made between him and the judgment debtor and according to them, the lease arrangement projected by the revision petitioner is concocted and the revision petitioner is only an encroacher into the property and not entitled to squat on the property without any basis and further, according to them, the documents projected by the revision petitioner with reference to the lease arrangement are all concocted and created for the purpose of this case and also not valid in the eyes of law and the property having been attached even before the alleged lease proceedings, the alleged subsequent lease arrangement made between the revision petitioner and the judgment debtor is void and not binding upon them and further according to them, the revision petitioner had been set up by the judgment-debtor to stall the delivery of possession to the auction purchaser and therefore, it is contended that the revision petitioner is not a bona fide tenant and not entitled to remain in the possession of the property and hence, the application preferred by the revision petitioner is liable to be rejected. 7. The Lower Court, on an appreciation of the rival contentions put forth by the respective parties, dismissed the application preferred by the revision petitioner. Challenging the same, the present civil revision petition has been preferred. 8. As seen from the impugned order, it is found that both parties have not adduced any oral and documentary evidence in support of their respective contentions. Challenging the same, the present civil revision petition has been preferred. 8. As seen from the impugned order, it is found that both parties have not adduced any oral and documentary evidence in support of their respective contentions. Be that as it may, when the entitlement of the revision petitioner to remain in the possession of the property is disputed by the contesting respondents and further according to the contesting respondents, the documents projected by the revision petitioner are all concocted for the purpose of this case and also invalid in the eyes of law, it is for the revision petitioner to establish that he is a bona fide tenant having been inducted into the property on lease by the judgment-debtor as put forth by him, without knowing the decree passed in the original suit and also the pendency of the execution proceedings levied. As adverted above, the revision petitioner claims to be in the possession and enjoyment of the property based upon the lease arrangement said to have been entered into between him and the judgment-debtor during 2001. According to the revision petitioner, even prior to the above said Lease Deed, the revision petitioner had been in possession of the property taking the same on lease from 01.04.1986 onwards by paying an advance sum of Rs.3,00,000/- to the judgment debtor and according to him, the said lease entered into on 01.04.1986 has been periodically renewed and finally, the lease was renewed on 01.04.2001 upto 31.03.2006 by enhancing the rent at Rs.2,935/-. Therefore, according to the revision petitioner, he is a bona fide tenant and entitled to be in the possession of the property concerned. However, as rightly contended by the contesting respondents, to establish the case of the revision petitioner that he has been in possession of the property right from 01.04.1986 onwards under the lease arrangement made between him and the judgment-debtor, there is no material forthcoming. The only Lease Deed projected is found to be dated 01.04.2001. That apart, the previous Lease Deeds said to have been entered into between the revision petitioner and the judgment-debtor are not forthcoming. The only Lease Deed projected is found to be dated 01.04.2001. That apart, the previous Lease Deeds said to have been entered into between the revision petitioner and the judgment-debtor are not forthcoming. Therefore, in the absence of any acceptable material, as rightly determined by the Court below, it cannot be held that as put forth by the revision petitioner, he had been in possession and enjoyment of the property right from 01.04.1986 pursuant to the lease arrangement entered into between him and the judgment-debtor. 9. As seen above, the property involved in the execution proceeding has been attached before Judgment on 31.01.1988 and the said attachment has also been made absolute on 18.01.1989. In such view of the matter, as rightly found by the Lower Court, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment after the attachment has been made shall be void as against all claims enforceable under the attachment as adumbrated under Section 64 of the Code of Civil Procedure. By way of an amendment brought into the Code of Civil Procedure with effect from 01.07.2002, it is found that Section 64 shall not be made applicable to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. Therefore, as per the principles enunciated in Section 64 of the Code of Civil Procedure, it is found that subsequent to the attachment, any transfer or delivery of the property contrary to the terms of the attachment shall be void, the exception being to the transfer or delivery of the property, which had been made pursuant to any contract with reference to the same entered into between the concerned parties and registered before such attachment. Therefore, invoking Section 64 C.P.C., the Lower Court has held that inasmuch as the revision petitioner has failed to establish that he has taken the lease arrangement prior to the date of attachment, his case that he is a bona fide tenant in respect of the property concerned cannot be accepted. That apart, the earlier Lease Deeds said to have been entered into between the revision petitioner and the judgment-debtor are not produced. That apart, the earlier Lease Deeds said to have been entered into between the revision petitioner and the judgment-debtor are not produced. The only lease arrangement projected is found to be of the year 2001 and not a registered document as per law. When the said arrangement is found to be after the attachment, as per Section 64 of the Code of Civil Procedure, the same is found to be a void document. Thus, the exception contemplated under Section 64 of the Code of Civil Procedure is also not made applicable to the present case. Hence, the Lease Deed of the year 2001 is also not helpful the revision petitioner's case and on the basis of the same, it cannot be held that the revision petitioner is a bona fide tenant in respect of the property and enjoying the same as such without any knowledge of the decree suffered by the judgment-debtor in the suit and also the pendency of the execution proceedings. No exception can be taken to the approach of the Court below in invoking Section 64 C.P.C., for rejecting the case of the revision petitioner. 10. Now, it is the case of the revision petitioner that he has also filed O.S.No.65 of 2002 as against the respondents seeking for the relief of permanent injunction. If that be so, it is for the revision petitioner to workout his remedy in accordance with law in the said suit proceedings. As on date, it is noted that the revision petitioner has not been granted any interim order in the above said suit so as to stall the execution proceedings till the culmination of the said suit. That apart, with reference to the same also no material is forthcoming on the part of the revision petitioner. When such being the case, it is found that the above plea also would not be in any manner useful to resist the handing over of the possession of the property to the auction purchaser. It is the further case of the revision petitioner that the judgment-debtor has mortgaged the property by receiving a sum of Rs.2,50,000/- from a third party and had made over the same in favour of the revision petitioner by receiving the said amount. Further, it is also stated that he has tendered Rs.1,80,000/- to the judgment-debtor in instalments. It is the further case of the revision petitioner that the judgment-debtor has mortgaged the property by receiving a sum of Rs.2,50,000/- from a third party and had made over the same in favour of the revision petitioner by receiving the said amount. Further, it is also stated that he has tendered Rs.1,80,000/- to the judgment-debtor in instalments. Therefore, according to the revision petitioner, in toto he has parted with a sum of Rs.7,30,000/- to the judgment-debtor and therefore, on account of the above position also, according to him, his possession should not be disturbed till the lease arrangement is in force. However, as regards the above case of the revision petitioner also, no material is placed before the Court below. That apart, when it has not been established by the revision petitioner that the lease arrangement entered into between him and the judgment-debtor is valid in the eyes of law, it is found that the above defence or case projected by the revision petitioner to resist the delivery of the property to the auction purchaser cannot be countenanced in any manner. 11. That apart, it is found that the case of the revision petitioner as such is a false one. According to the revision petitioner, even while taking the property on lease in the year 1986, he has paid a sum of Rs.3,00,000/- to the judgment-debtor by way of advance. However, it has not been established by the revision petitioner that he has tendered such a huge amount to the judgment-debtor by way of advance. Further, it has also not been established that at that point of time, the parties were required to fix the advance in a sum of Rs.3,00,000/-. On the other hand, as per the contentions of the contesting respondents and also as found by the Court below, it is found that the suit had ended in a decree only for a sum of Rs.8,473.55 and in the execution proceedings, the value of the property is only mentioned as Rs.6,000/- and the Ameen had fixed the value of the property at Rs.35,000/- and the Court had fixed the upset price at Rs.45,000/-. These values have been determined during the course of execution proceedings levied in the year 1993. These values have been determined during the course of execution proceedings levied in the year 1993. Therefore, the case of the revision petitioner that he had parted with the sum of Rs.3,00,000/- as advance to the property concerned even during the year 1986 cannot be believed and accepted in any manner in the absence of any proof with reference to the same. 12. Further, as put forth by the contesting respondents and also as determined by the Court below, if really any lease arrangement as such has been entered into between the revision petitioner and the judgment-debtor and the same has been renewed periodically thereafter and if really the revision petitioner had parted with a sum of Rs.3,00,000/- as advance to the judgment debtor and also paying the rent at the rate of Rs.1,500/- onwards enhanced periodically from 01.04.1986 and if really as put forth by the revision petitioner, he had paid a sum of Rs.2,50,000/- to the judgment-debtor at the time of made over of the so called mortgage deed by the judgment-debtor in his favour and a sum of Rs.1,80,000/- by way of instalments, the decreetal sum being a sum of Rs.8,473.55, it is found that the judgment-debtor would have paid the said sum to the decree-holder out of the sums said to have been received by him from the revision petitioner and on the other hand it is found that the judgment-debtor had been making only piecemeal payments towards the decreetal amount and inasmuch as he has stopped the payment at one stage of the matter, it is found that the property was brought for sale and therefore, the case projected by the revision petitioner, as seen from the above discussions is found to be highly untenable and cannot be accepted in any manner. 13. 13. The learned counsel for the revision petitioner contended that inasmuch as the possession of the revision petitioner has been admitted, even though he had not produced the earlier lease arrangements as put forth by him, his possession cannot be disturbed and if at all, the auction purchaser at the most could only obtain symbolic possession from him as per Order XXI Rule 96 C.P.C. A combined reading of Order XXI Rules 95 and 96 C.P.C., would go to show that the benefit conferred under Order XXI Rules 95 and 96 C.P.C., is only given to the auction purchaser and not to the third party. Therefore, it does not stand to reason as to how the revision petitioner, who is a third party is entitled to invoke the benefit conferred under Order XXI Rule 96 C.P.C. Further, a conjoint reading of Order XXI Rules 95 and 96 C.P.C., would go to show that the tenant or other person can claim to remain in the possession of the property only if they are entitled to occupy the same as per law and when in the light of the above discussions it is found that the revision petitioner has not established that he is entitled to be in the possession and occupation of the property as per law and on the other hand, when his case and the so called documents projected by him do not improve his case and on the other hand, they are found to be void document and also invalid in the eyes of law, it is found that the case of the revision petitioner that he is in the possession and enjoyment of the property as a tenant under the judgment-debtor pursuant to the contracts entered into between them as such cannot be accepted. Therefore, it is found that the Lower Court has rightly determined that the revision petitioner cannot be deemed to be in the possession of the property in accordance with law and therefore, rightly held that the revision petitioner had concocted the documents and projected a false case and accordingly, dismissed the application preferred by him. 14. Therefore, it is found that the Lower Court has rightly determined that the revision petitioner cannot be deemed to be in the possession of the property in accordance with law and therefore, rightly held that the revision petitioner had concocted the documents and projected a false case and accordingly, dismissed the application preferred by him. 14. The decisions reported in (1981) 2 SCC 675 [Dev Raj Dogra and others vs. Gyan Chand Jain and others] and (1996) 4 SCC 144 [Samir Sobhan Sanyal vs. Tracks Trade Pvt., Ltd., and others] are relied upon by the counsel for the revision petitioner in support of his contentions. The principles of law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 15. In the light of the above discussions, the impugned order of the Lower Court is found to be in order both on factual as well as legal aspects and it does not warrant any interference from this Court and resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.