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2018 DIGILAW 4299 (MAD)

M. Govindasamy (Deceased) v. R. Krishnan (died)

2018-11-20

P.T.ASHA

body2018
JUDGMENT : 1. The case on hand is a classic example of how Practitioners of the noble profession of law have misused the procedure of law committed a gross abuse of process of law and obtained a fraudulent order. 2. The facts of the case narrated herein below will clearly demonstrate the above statement: The suit O.S.No.1099 of 1978 came to be filed before the learned District Munsif, Dharmapuri, on 28.04.1978 by five persons, who were practising Advocates styling themselves as 25 Clubs to declare their right over the suit property, recovery of possession from the defendant after removing the newly put up superstructures therein. 3. The defendants were A.Maragathammal, wife of Arumuga Pillai, M.Govindasamy, the deceased 1st petitioner and Panchali Ammal. Considering the fact that the plaintiffs were Advocates, none of the Advocates practising at Dharmapuri dared to enter appearance on behalf of the defendants. Therefore, the 3rd defendant was constrained to file an application seeking transfer of the case from the District Munsif Court, Dharmapuri, to the District Munsif Court, Krishnagiri, in O.S.No.6 of 1980 on the file of the learned District Judge, Dharmapuri at Krishnagiri. This petition was filed on 03.03.1980 and notice of the same was issued to the five plaintiffs and the defendants 1 and 2, who were arrayed as respondents 6 and 7. The plaintiffs 1 to 3 entered appearance through their counsel on the very first hearing i.e., on 14.04.1980. Though notice has been served on the plaintiffs 4 and 5 therein, they chose to remain ex parte. It is seen that the proceedings were being adjourned from time to time for the counter of the plaintiffs 1 to 3. The defendants 1 and 2 were also called absent and set ex parte on 16.06.1980. On 15.06.1981, the plaintiffs 4 and 5 were called absent and set ex parte and ultimately, on 18.01.1982, after setting ex parte, the transfer was ordered. The suit O.S.No.1099 of 1978 was directed to be transferred from the file of the District Munsif Court, Dharmapuri, to the file of the District Munsif Court, Krishnagiri. On 15.06.1981, the plaintiffs 4 and 5 were called absent and set ex parte and ultimately, on 18.01.1982, after setting ex parte, the transfer was ordered. The suit O.S.No.1099 of 1978 was directed to be transferred from the file of the District Munsif Court, Dharmapuri, to the file of the District Munsif Court, Krishnagiri. The plaintiffs, who were very much aware about the said transfer, failed to inform the same to the learned District Munsif, Dharmapuri and on 03.08.1982, they managed to get an ex parte decree from a Court which did not have a jurisdiction to try the suit on the date when the ex parte decree was obtained. 4.11 years later, the plaintiffs filed R.E.P.No.102 of 1993 on the file of the District Munsif Court, Dharmapuri, for recovery of possession on the basis of the ex parte decree obtained by them on 03.08.1982. When the defendants had received notice in the said execution proceedings, they had come to know about the ex parte decree being passed by the learned District Munsif, Dharmapuri. Therefore, defendants 2 and 3 filed R.E.A.No.34 of 1997 on the file of the District Munsif Court, Dharmapuri, under Section 47 of the Code of Civil Procedure to declare the ex parte decree dated 03.08.1982 as nullity and inexecutionable, obtained on the basis of an act of fraud. 5. In the said petition, the petitioners/defendants 2 and 3 herein had contended that the suit property was in occupation of Vallalar Illam, Dharmapuri since 1967 and they had put up a construction for running a School known as Vallalar Arivalayam and Vallalar Illam for destitute children and juvenile and the said Home was approved by the Government of Tamil Nadu. These facts were known to the plaintiff which they had deliberately suppressed. Further, on the date when the decree was passed, the learned District Munsif, Dharmapuri, no longer had a jurisdiction to entertain the suit and pass orders as the suit had already been withdrawn and transferred to the file of the District Munsif Court, Krishnagiri by orders of the learned District Judge, Dharmapuri in Tr.O.P.No.6 of 1980. 6. Pending the Section 47 proceedings, defendants 2 and 3 had moved this Court in Tr.C.M.P.No.15509 of 1993 seeking to withdraw the proceedings in R.E.P.No.102 of 1992 in O.S.No.1099 of 1978 from the file of the District Munsif Court, Dharmapuri, to the file of the District Munsif Court, Salem. 6. Pending the Section 47 proceedings, defendants 2 and 3 had moved this Court in Tr.C.M.P.No.15509 of 1993 seeking to withdraw the proceedings in R.E.P.No.102 of 1992 in O.S.No.1099 of 1978 from the file of the District Munsif Court, Dharmapuri, to the file of the District Munsif Court, Salem. By order dated 13.11.1995, this Court transferred the case to the District Munsif Court, Krishnagiri. On 11.07.1997, Memo was filed by the counsel for the plaintiffs that the plaintiffs 1 to 4 had died and petitioners' claim against the plaintiffs 1 to 4 was dismissed. A Memo was also filed to delete the name of the 3rd plaintiff from the array of the petitioners. Thereafter, on 08.08.1997, R.E.A.No.34 of 1997 was allowed and consequently, the execution proceedings in R.E.P.No.56 of 1996 was also closed since the respondent/Decree holders had filed their counter. 7. Thereafter, on 19.08.1997, the 5th plaintiff had filed R.E.A.No.278 of 1997 under Order XXI Rule 106 of the Code of Civil Procedure to set aside the ex parte order in R.E.P.No.56 of 1996 dated 08.08.1997. In the said application, notice was ordered to be taken to the defendants/Judgment Debtors, returnable by 03.10.1997. Since no notice was taken on 03.10.1997 and as the petitioner therein was absent, R.E.A.No.278 of 1997 was dismissed for default. On 28.10.1997, the 5th plaintiff filed an application in R.E.A.No.68 of 1999 to set aside the ex parte order and to restore the petition R.E.A.No.278 of 1997. This petition appears to have been returned for compliance of several defects and ultimately, the same was taken on file on 25.02.1999 and notice was ordered to the respondents, returnable by 22.03.1999. Thereafter, on 05.07.2001, the learned District Munsif, Krishnagiri, allowed R.E.A.No.68 of 1999. Aggrieved by the said order, the 2nd defendant has filed the present revision. Therefore, it is obvious that despite the Section 47 petition being moved on the basis that the decree is a nullity having been obtained from a Court which lacked jurisdiction, the plaintiffs persisted with their efforts to have this non-est decree being executed. 8. Pending revision, the 1st petitioner/2nd defendant Govindasamy died and his son has been brought on record. The sole plaintiff, who conducted the suit and the execution proceedings, also died and an application was taken out to substitute the Office Bearers of Dharmapuri Bar Association as the respondents. 8. Pending revision, the 1st petitioner/2nd defendant Govindasamy died and his son has been brought on record. The sole plaintiff, who conducted the suit and the execution proceedings, also died and an application was taken out to substitute the Office Bearers of Dharmapuri Bar Association as the respondents. The said application was also ordered by this Court on 29.08.2018. 9. Heard Mr.S.Subbiah, learned Senior Counsel on behalf of M/s.Elizabeth Ravi for the petitioner and Mr.G.Jeremiah, learned counsel appearing on behalf of the respondents 2 and 4. 10. The learned Senior Counsel would argue that the entire execution proceedings is based on a decree which has been passed by a Court, which did not have a jurisdiction to try the suit on the date of which the decree was passed. He would further contend that the plaintiff had committed a fraud on Court and a decree which has been obtained by fraud cannot be sustained and consequently, the order allowing the application for restoration R.E.A.No.278 of 1997 is totally erroneous. 11. Per contra, Mr.G.Jeremiah, learned counsel appearing on behalf of the Decree Holders/respondents 2 and 3 would contend that the application in question is only to restore a petition seeking to set aside the order passed in E.A.No.34 of 1997. He would also rely upon the Judgment reported in (2014) 6 Supreme Court Cases 351 [Union of India and others v. Major S.P. Sharma and others] with particular reference to Paragraphs 80 to 83. 12. Heard both the parties, perused the records and the Judgment cited on the side of the respondents. 13. The entire execution proceedings is based upon the decree that has been passed by the learned District Munsif, Dharmapuri, where on the date of passing of the ex parte decree was not possessed of jurisdiction since even as early as on 18.01.1982, the suit had been withdrawn from the file of the learned District Munsif, Dharmapuri and transferred to the learned District Munsif, Krishnagiri. Six months after the said transfer, the learned District Munsif, Dharmapuri, has passed the ex parte decree. It is also to be borne in mind that the plaintiffs are none else than the practising Advocates, who are very much aware about the legal implications of transfer and the fact that the Court at Dharmapuri, had ceased to have the jurisdiction on the day when they had obtained the ex parte decree. It is also to be borne in mind that the plaintiffs are none else than the practising Advocates, who are very much aware about the legal implications of transfer and the fact that the Court at Dharmapuri, had ceased to have the jurisdiction on the day when they had obtained the ex parte decree. The plaintiffs have deliberately not divulged the fact that the suit had already been transferred to the file of the learned District Munsif, Krishnagiri. 14. Taking advantage of the fact that the defendants were not available, the plaintiffs have snatched the fraudulent decree from the Court. On the basis of this fraudulent decree which is non-est in the eye of law, the respondents have commenced execution proceedings. It is also to be borne in mind that the defendants were not even permitted to contest the suit, when the same was pending before the learned District Munsif, since no Advocates were willing to appear on their behalf as the plaintiffs were Advocates. The plaintiffs had therefore obtained the ex parte decree not only by exercising fraud but also through intimidation. The learned District Munsif, Krishnagiri, had rightly allowed R.E.A.No.278 of 1997. The modus operandi of the plaintiffs is evident from the manner in which they take notice in the applications filed by the defendants and thereafter, allow the same to be ordered ex parte and then take out an application for restoring the same. Such a conduct cannot be encouraged by this Court. It is seen that such a conduct has been adopted by the plaintiffs in the Tr.O.P., in E.A.No.34 of 1997 and R.E.A.No.278 of 1997. 15. The Judgment cited by the respondents would not come to their aid since that is a case where the Judgment was passed by a Court having jurisdiction and not like the one passed in the instant case. 16. Therefore, exercising jurisdiction under Article 227 of the Constitution of India, this Court is inclined to set aside the order passed by the learned District Munsif, Krishnagiri, who has not taken into account either the conduct of the plaintiffs or the fact that the decree is obtained from a Court which on the date of the decree did not have a jurisdiction to pass the same. 17. 17. Considering the fact that the plaintiffs who are practising Advocates had played fraud on Court and snatched an ex parte decree and thereafter, initiated execution proceedings on the basis of this decree and persisted in proceeding with the same this Court deems it fit to impose costs of Rs.50,000/- (Rupees fifty thousand only) on the respondents herein, who had been substituted in the place of the deceased plaintiffs. In the result, this Civil Revision Petition is allowed. The respondents shall pay costs of Rs.50,000/- to the revision petitioners.