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2018 DIGILAW 1784 (MAD)

Krishnasamy Chettiar v. Velu Odayar (died)

2018-06-06

M.V.MURALIDARAN

body2018
ORDER : 1. This Civil Revision Petition has been originally filed by the petitioners 1 and 2 challenging the order passed in E.P.No.26 of 2004 in O.S.No.7 of 1977 on the file of the Principal District Munsif Court, Karaikal dated 22.07.2004, whereby the Executing Court ordered delivery of the property. 2. The petitioners 1 and 2 are defendants in O.S.No.7 of 1977 and the suit has been filed by the plaintiff Velu Odayar for delivery of vacant possession of the suit property by the defendants after dismantling the superstructure put up by them and payment of arrears of rent and also damages for the use and occupation till surrendering possession of the suit property. By the judgment dated 29.11.1979, the suit was decreed and for execution of the decree, the respondents herein have filed E.P.No.26 of 2004. 3. Refuting E.P.No.26 of 2004, the defendants have filed counter stating that the property described in the decree was not available for execution, as it lacks precision by non-mentioning of the survey number and correct boundary. Therefore, due to lack of clarity and identity of the property, the decree is not executable. It is stated that the decree in O.S.No.7 of 1977 was injuncted from execution in O.S.No.112 of 1992 (filed by the defendants in O.S.No.7 of 1977), wherein a decree was passed on 21.07.1995 and the decree passed in O.S.No.112 of 1992 was still valid, binding and became final, as there was no appeal or revision filed. The execution of the decree in O.S.No.112 of 1992 is pending in E.P.No.37 of 2003. It is also stated that E.P.No.26 of 2004 filed by the respondents was barred by limitation. 4. Pending E.P.No.26 of 2004, the defendants have filed E.A.No.309 of 2004 under Section 47 of the Code of Civil Procedure, 1908 alleging that the property mentioned in the Execution Petition is not a private property and it is a poramboke property, which necessitated the filing of the suit being O.S.No.112 of 1992 with its specific identification and survey numbers seeking that the decree in O.S.No.7 of 1977 is not valid and cannot be executed. According to the defendants, the property described in O.S.No.7 of 1977 and O.S.No.112 of 1992 are one and the same. 5. Upon consideration of the rival submissions, the Executing Court ordered delivery of the property in E.P.No.26 of 2004. According to the defendants, the property described in O.S.No.7 of 1977 and O.S.No.112 of 1992 are one and the same. 5. Upon consideration of the rival submissions, the Executing Court ordered delivery of the property in E.P.No.26 of 2004. Challenging the same, the defendants have filed the present Civil Revision Petition. Pending Civil Revision Petition, the second defendant, who is the second petitioner died and his legal heirs were impleaded as petitioners 3 to 11 in this Civil Revision Petition. 6. I heard Mr. R. Natarajan, learned counsel for the petitioners and Mr. T.P. Manoharan, learned Senior Counsel for M/s. K.P. Jotheeswaran, learned counsel for the respondents 2, 3, 4 and 5 and also perused the materials available on record. 7. The learned counsel for the petitioners submitted that the impugned order dated 22.07.2004 passed in E.P.No.26 of 2004 by ignoring the decree that was passed in O.S.No.112 of 1992, dated 21.07.1995 which restrained by an order of permanent injunction the execution of the decree passed in O.S.No.7 of 1977, is against the law, legality, contrary to public policy and without jurisdiction. He submitted that the Executing Court ought not to have entertained E.P.No.26 of 2004 for enforcement of the decree in as much as the life of the decree that was passed on 29.11.1979 stood eclipsed and became inoperative by reason of the decree passed in O.S.No.112 of 1992. He argued that the impugned order of the Executing Court is perverse and without jurisdiction. In support of his submissions, the learned counsel relied upon the following decisions: (i)State of W.B. v. Hemant Kumar Bhattacharjee and others, reported in AIR 1966 SC 1061 . (ii)State of Punjab v. Bhag Singh, reported in (2004) 1 SCC 547 . 8. Per contra, the learned Senior Counsel appearing for the respondents argued that after a hot contest only the suit in O.S.No.7 of 1977 was decreed by the trial Court. Aggrieved by the same, the defendants have filed first appeal being A.S.No.1 of 1980 and the First Appellate Court allowed the appeal thereby reversed the judgment and decree passed by the trial Court. Aggrieved by the same, the defendants have filed first appeal being A.S.No.1 of 1980 and the First Appellate Court allowed the appeal thereby reversed the judgment and decree passed by the trial Court. The learned Senior Counsel submitted that challenging the judgment of the First Appellate Court, the plaintiff-Velu Odayar filed the Second Appeal being S.A.No.212 of 1982 before the High Court and the High Court allowed the Second Appeal, thereby restored the decree and judgment passed by the trial Court in O.S.No.7 of 1977. After allowing the Second Appeal, the respondents have filed E.P.No.26 of 2004 for delivery of the property. 9. The learned Senior Counsel further submitted that the petitioners 3 to 5, who are sons of the second petitioner were obstructing to the delivering the property. The learned Senior Counsel submitted that the petitioners 3 to 5 were living along with the second petitioner without having any right over the property mentioned in E.P.No.26 of 2004. The learned Senior Counsel argued that the petitioners have no right to obstruct enforcement of the decree passed O.S.No.7 of 1977. To fortify his submissions, the learned Senior Counsel relied upon the following decisions: (i)Ravinder Kaur v. Ashok Kumar and another, reported in (2003) 8 SCC 289 . (ii)Dalip Singh v. State of Uttar Pradesh and others, reported in (2010) 2 SCC 114 . (iii)Ranipet Municipality, rep. by its Commissioner and Special Officer, Ranipet v. M.Shamsheerkhan, reported in 1998 (I) CTC 66 . (iv)Ramesh Kumar and another v. Furu Ram and another, reported in (2011) 8 SCC 613 . (v)S.P.Chengalvaraya Naidu (dead) by Lrs. v. Jagannath (dead) by Lrs. and others, reported in (1994) 1 SCC 1 . (vi)Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (dead) through Lrs., reported in (2012) SCC 370. (vii)Maharashtra State Board of Secondary and Higher Secondary Education v. K.s.Gandhi and others, reported in (1991) 2 SCC 716 . (viii)Hope Plantations Ltd. v. Taluk Land Board, Peermade and another, reported in (1999) 5 SCC 590 . 10. The point that arises for consideration is whether the Executing Court was right in ordering delivery of the property in E.P.No.26 of 2004. 11. (viii)Hope Plantations Ltd. v. Taluk Land Board, Peermade and another, reported in (1999) 5 SCC 590 . 10. The point that arises for consideration is whether the Executing Court was right in ordering delivery of the property in E.P.No.26 of 2004. 11. For better appreciation, it is necessary to extract the schedule of property mentioned in O.S.No.7 of 1977, which reads as under: “Thirunallar Sub Registry, Thirunallar Commune, Thirunallar Town, an extent of 30 kuzhis of house site bounded by North at Kandankudy Road and Pillayar Temple, south of Poomulayalmangalam Vaikal, West of New Street and East of the house and garden of Ramasamy Padayachi and superstructure put up thereat.” 12. It appears that the suit in O.S.No.7 of 1977 was decreed by the trial Court, thereby directing the defendants therein to vacate and deliver vacant possession of the suit property. Aggrieved by the same, the defendants have filed Appeal Suit in A.S.No.1 of 1980 and the same was allowed by the First Appellate Court vide judgment and decree dated 28.02.1981. Challenging the judgment and decree of the First Appellate Court, the plaintiff-Velu Odayar filed S.A.No.112 of 1982 before the High Court. By the judgment dated 19.12.1991, the High Court allowed the Second Appeal, thereby restored the decree and judgment passed by the trial Court in O.S.No.7 of 1977. Thus, the decree and judgment became final and there is no further appeal. For executing the decree passed in O.S.No.7 of 1977, the respondents have filed E.P.No.26 of 2004. 13. According to the petitioners, the decree in O.S.No.7 of 1977 is not executable as the same was barred by limitation. The said submission of the petitioners is unacceptable for the reason that limitation of 12 years for execution of the decree starts from the decree passed in S.A.No.112 of 1982, i.e., the date of judgment and decree in S.A.No.112 of 1982, which is 19.12.1991. E.P.No.26 of 2004 was filed on 05.12.2003, well within the period of 12 years limitation. 14. The next contention of the petitioners is that there is no survey number in the suit property and, therefore, the decree passed in O.S.No.7 of 1977 is not executable. 15. E.P.No.26 of 2004 was filed on 05.12.2003, well within the period of 12 years limitation. 14. The next contention of the petitioners is that there is no survey number in the suit property and, therefore, the decree passed in O.S.No.7 of 1977 is not executable. 15. On a perusal of the typed set of papers, I find that the defendants in O.S.No.7 of 1977 have filed the written statement, wherein they have not raised any objection regarding non-mentioning of the survey number of the suit property in O.S.No.7 of 1977. On the other hand, the defendants have pleaded that they are in possession of the suit property under the guise of lease from the date of inception. The defendants' only objection in the suit was that they are not liable to be evicted from the suit property by virtue of the provisions of the Pondicherry Kudiyiruppu Act. Since, the defendants have not raised any objection regarding the non-mentioning of the survey number and the trial Court, First Appellate Court even the High Court have accepted the description of the suit property as it is stated in the plaint and proceeded with the matter. The petitioners are estopped from raising plea that the decree is not executable for want of survey number. In fact, the defendants have not disputed boundaries of the suit property in the suit, which means that they have accepted the boundaries. Therefore, I am of the view that boundaries will prevail over the identification of the suit property. 16. It is the say of the petitioners that the original defendants in O.S.No.7 of 1977 have filed O.S.No.112 of 1992 for permanent injunction restraining the respondents herein from interfering with the possession of the suit property under the guise of executing a decree in O.S.No.7 of 1977, dated 29.11.1979. 17. In O.S.No.112 of 1992, the suit properties have been described as under: “In Pondicherry Registration District, Tirunallaru Sub Registry and commune Tirunallaru in Tirunallaru village, the North Street also known as Kandangudi Road and also known as Karaikal Ambagarathur Main Road, R.S.No.173 Road Poramboke and R.S.No.174-50 Temple porambokku; 7 metres East to West and 7 metres North to south in R.S.No.173; Boundary for R.S.No.173 south of R.S.No.174/49; North of R.S.No.173 Road porambokku; West of R.S.No.174/50 temple porambokku also in the possession of the plaintiff. East of the defendant's house and garden. East of the defendant's house and garden. (2) For R.S.No.174/50 Temple porambokku-Northern Pragaram of Temple 9 metres South to North and 8 metres East to West-boundary description-North by the temple porambokku 174/50; south of 174/49 belonging to the defendant; West of Railady Road also known as Pidarikoil Theru or New Street; West of Road poramboku in R.S.No.173. (3) R.S.No.174/50 Western Program of the temple 4 metres x 4 metres. Boundaries : West of Temple porambokku in R.S.No.174/50; East of Road porambokku R.S.No.173 in the plaintiff's possession; North of Road porambokku in R.S.No.173 Road porambokku; South of R.S.No.174/50 temple porambokku in the possession of the plaintiffs; (The entire properties items 1, 2 and 3 are shown by striped portion in the sketch. The shaded portion in the sketch denotes the area in the occupation of the plaintiffs in R.S.No.174/49 which the subject matter of the decree in O.S.No.7 of 1977). 18. On a perusal of the decree in O.S.No.112 of 1992, I find that the said suit was decreed ex parte on 21.07.1995. As per Order 20 Rule 4 of Civil Procedure Code, 1908, judgments of the Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision, even in the case where the defendant is set ex parte. 19. It appears that having failed in S.A.No.112 of 1982, dated 19.12.1991, the petitioners have filed the suit in O.S.No.112 of 1992 praying for permanent injunction restraining the respondents from executing the decree passed in O.S.No.7 of 1977. Once the decree and judgment of the trial Court in O.S.No.7 of 1977 has been upheld by the High Court, the parties therein are bound to obey the decree and judgment in the said suit. Therefore, it is to be held that behind the back of the petitioners and also suppressing the material facts, the petitioners have obtained ex parte decree in O.S.No.112 of 1992. 20. As stated supra, in the earlier proceedings carried up to the High Court, neither the original defendants in O.S.No.7 of 1977, nor the legal heirs of the second defendant have raised any objection regarding the description of the suit property in O.S.No.7 of 1977. 20. As stated supra, in the earlier proceedings carried up to the High Court, neither the original defendants in O.S.No.7 of 1977, nor the legal heirs of the second defendant have raised any objection regarding the description of the suit property in O.S.No.7 of 1977. Therefore, I am of the view that in order to protract the proceedings in E.P.No.26 of 2004, the petitioners have raised an objection that the description of the suit property is not correct and, therefore, the decree is not executable. Such an objection cannot be countenanced. 21. In their plaint in O.S.No.112 of 1992, the petitioners averred that in the extent of 30 kuzhis, they are in enjoyment of about 2 kuzhis only measuring 7= metres east west and 3 metres north south, which is the residential portion of the superstructure. The remaining portion in possession of the petitioners is situate in R.S.No.173 road porambokku and R.S.No.174/50 temple porambokku. 22. In paragraph 8 of the plaint in O.S.No.112 of 1992, it has been stated as under: “8. ...The plaintiffs submit that they are willing to dismantle the superstructure namely residential portion measuring 7 = metres east to west, 3 metres north to south which is existing in R.S.No.174/49 the extent of being two kuzhis which is the subject matter of O.S.No.7 of 1977. Since the remaining extent of 28 kuzhis in R.S.No.174/49 which is not in effective enjoyment of the plaintiffs, they have no objection for the defendant taking possession of the said extent of 28 kuzhis belonging to him directly or through Court” 23. Though the petitioners alleged that major portion of their occupation and possession exist only in road poramboke and temple poramboke respectively, the petitioners have not filed any document to prove the same. In the absence of proof, it cannot be said that the property mentioned in E.P.No.26 of 2004 is poramboke property. Therefore, as stated supra, raising a plea qua description or identity of the property or a dispute in regard to the boundary of the property mentioned in E.P.No.26 of 2004 is only to delay and/or protract the delivery proceedings. 24. In the absence of proof, it cannot be said that the property mentioned in E.P.No.26 of 2004 is poramboke property. Therefore, as stated supra, raising a plea qua description or identity of the property or a dispute in regard to the boundary of the property mentioned in E.P.No.26 of 2004 is only to delay and/or protract the delivery proceedings. 24. In view of the categoric finding as aforesaid based on the pleadings and submissions and/or documents on record, which have already been decided up to the High Court in the Second Appeal, which are not disputed by way of any additional materials, I do not propose to delve into the various decisions relied by the learned counsel appearing for the petitioners as well as the learned Senior Counsel for the respondents. 25. It is well settled that Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system. 26. This Revision is directed against the order of delivery in E.P.No.26 of 2004 dated 22.07.2004 passed by the Executing Court and the Executing Court while ordering delivery, directed the E.P.No.26 of 2004 to be listed on 20.08.2004. After ordering delivery of the property dated 22.07.2004, the respondents have filed E.A.No.349 of 2004 seeking to remove obstructions made by the petitioners 3 to 5 and order delivery of the property. 27. It is to be noted that after filing of this Revision before this Court on 31.01.2005, the petitioners, particularly the petitioners 3 to 5 have filed E.A.No.277 of 2005 to stay of operation of the order dated 22.02.2005 passed by the Executing Court ordering delivery of the property. It appears that the Court has not passed any order staying the delivery proceedings. 28. From the aforesaid narration of facts, it is seen that the petitioners have adopted dilatory tactics to restrain the respondents from enjoying the fruits of the decree in O.S.No.7 of 1977. By the impugned order, the Executing Court, ordered as under: “2. .. Heard. The property sought for delivery in a different property than the property covered under O.S.No.112 of 1992. Hence, deliver the property. Call on 20.8.2004. Batta in 3 days. By the impugned order, the Executing Court, ordered as under: “2. .. Heard. The property sought for delivery in a different property than the property covered under O.S.No.112 of 1992. Hence, deliver the property. Call on 20.8.2004. Batta in 3 days. No costs.” 29. I find that there is no error in ordering delivery of the property by the Executing Court and there is also no stay obtained from the higher Court for execution of the decree. Therefore, in the absence of any stay order from the higher Court, the Executing Court was right in ordering delivery of the property mentioned in E.P.No.26 of 2004. There is no justification for this Court in interfering with the order of the Executing Court under Section 115 of the Code of Civil Procedure, 1908. 30. The exercise of the revisional powers of the High Court under Section 115 of the Code of Civil Procedure, 1908 is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and sub-serve the ends of justice and not to deny or defect it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction. 31. In the case on hand, as stated supra, the petitioners have adopted dilatory tactics to prevent the respondents from enjoying the fruits of the decree in O.S.No.7 of 1977. There is no illegality in the order of the Executing Court dated 22.07.2004 passed in E.P.No.26 of 2004 and the Civil Revision Petition is liable to be dismissed. 32. In the result, the Civil Revision Petition is dismissed. No costs.