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2021 DIGILAW 1950 (MAD)

D. Udhayakumar v. K. Chinnadurai

2021-07-30

K.MURALI SHANKAR

body2021
ORDER : The revision is directed against the order, dated 24.07.2019 passed in E.A.No.32 of 2018 in E.P.No.145 of 2015 in O.S.No.202 of 2002 on the file of the Principal Subordinate Court, Dindigul permitting the impleadment of third party under Order 1 Rule 10(2) of the Code of Civil Procedure. 2. The revision petitioner is the decree holder and he filed the suit for specific performance of the agreement dated 27.03.2000, that the trial Court has decreed the suit and that the first Appellate Court and the second Appellate Court have dismissed the appeals and thereby, confirming the Judgment and Decree of the trial Court. The decree holder has then laid the execution proceeding in E.P.No. 40 of 2011 and got the sale deed executed from the Court and that thereafter, he has filed the petition in E.P.No.145 of 2015 seeking delivery of the property as per the sale deed executed in his favour. When the said execution petition in E.P.No. 145 of 2015 was pending, the third party/first respondent herein has filed an application under Order 1 Rule 10(2) CPC seeking his impleadment as the respondent in the execution petition. The learned Subordinate Judge, after enquiry has passed the impugned order allowing the impleading petition. Aggrieved by the said order, the decree holder has come forward with the present revision. 3. The third party/proposed respondent, claiming to be the cultivating tenant of the suit property, by alleging that the decree holder by suppressing his status as a cultivating tenant, is attempting to take delivery unlawfully, has sought for his impleadment. It is pertinent to note that Order 1 Rule 10 CPC is applicable to the suits only and the same is not applicable to the execution proceeding. Aggrieved persons if any will have to proceed under Order 21 Rule 97 CPC. At this juncture, it is necessary to refer the decision of this Court, passed in CRP(NPD).No. 1321 of 2016, dated 15.07.2016 in the case of N. Manivannan Vs. M.S.Sivakumar, whereunder this Court has held that a third party cannot be impleaded in the execution proceedings. The relevant paragraphs are extracted hereunder; “4. On a perusal of the report of the Bailiff, it could be seen that he has not mentioned about the proposed parties and he has filed his report stating that the boundaries of the property was not correctly mentioned in the warrant. The relevant paragraphs are extracted hereunder; “4. On a perusal of the report of the Bailiff, it could be seen that he has not mentioned about the proposed parties and he has filed his report stating that the boundaries of the property was not correctly mentioned in the warrant. Except saying that the boundaries are incorrectly stated in the delivery warrant, the Bailiff has not whispered a single word about the proposed parties in his report. When the decree was passed as against the respondents 3 and 4 herein, the respondents 1 and 2 cannot get themselves impleaded in the Execution Petition. The application was filed under Order 1 Rule 10(2) of the Civil Procedure Code. 6. .... If the proposed parties are in possession of the suit property, they could have filed an application under Order 21 Rule 97 of the Civil Procedure Code and not under Order 1 Rule 10 of the Civil Procedure Code. Having filed a suit in O.S.No.96 of 2012 to declare the execution proceedings in E.P.No.112 of 2012 as null and void, the Execution Court ought not to have allowed the application and impleaded the proposed parties as respondents in the execution proceedings.” 4. Considering the above, this Court has no hesitation to hold that the application filed by the first respondent under Order 1 Rule 10(2) CPC to implead him in the execution proceedings is legally not maintainable and as such, this application is liable to be dismissed. But that is not the end of the matter. The learned Subordinate Judge, after recording the rival contentions, by simply observing that the actual situation will be known only at the enquiry, allowed the petition. 5. But that is not the end of the matter. The learned Subordinate Judge, after recording the rival contentions, by simply observing that the actual situation will be known only at the enquiry, allowed the petition. 5. The decree holder has taken a specific defence that after the dismissal of the Second Appeal by this Court confirming the Judgment and decree passed by the trial Court in O.S.No.202 of 2002 as well the first appellate court in A.S.No.29 of 2009, the defendants in collusion with the present proposed party has created an unregistered agreement as if the proposed party was inducted as a tenant in respect of the suit property, that the proposed party has then filed a petition before the Tenancy Record Officer and obtained orders in collusion with the defendants fraudulently, that the order passed in T.R.No.1 of 2011 is legally invalid and it is only non est in the eye of law and the same is not binding on the decree holder, that subsequently the defendants instigated the proposed party to file a suit in O.S.No.108 of 2014 claiming permanent injunction restraining the defendants therein including the decree holder from evicting or from interfering with the proposed party's possession and enjoyment of the suit property as a cultivating tenant, that the proposed party has not been in possession and enjoyment of the suit properties at any point of time, that the proposed party and the defendants have colluded together and indulged in all illegal acts and obtained orders collusively and fraudulently to prevent the decree holder from enjoying the fruits of the decree and that the proposed party has filed the present application for impleadment on the basis of the above said orders and that therefore, the same is liable to be dismissed. Since the decree holder has raised serious charges of fraud and collusion, this Court cannot remain as a mute spectator and is duty bound to consider the same. 6. Before entering into further discussion, it is necessary to refer the happenings chronologically: S.N Nature of Happenings Date 1. Unregistered lease deed alleged to have been executed between the first defendant and his wife Kuppayeeammal and the proposed party 09.09.1999 2. Registered sale agreement entered into between the plaintiff and the original defendants 1 to 3 27.03.2000 3. Issuance of pre suit notice 01.03.2002 4. Unregistered lease deed alleged to have been executed between the first defendant and his wife Kuppayeeammal and the proposed party 09.09.1999 2. Registered sale agreement entered into between the plaintiff and the original defendants 1 to 3 27.03.2000 3. Issuance of pre suit notice 01.03.2002 4. Filing of the suit for specific performance in O.S.No.202 of 2002 April 2002 5. Filing of impleading petition by the first defendant's daughter Sagunthalai in I.A.No. 369 of 2008 2008 6. Dismissal of the Impleading petition filed by the first defendant's daughter Sagunthalai 06.03.2009 7. Dismissal of the Civil Revision Petition in CRP(MD).No.716 of 2009 filed by the said Sagunthalai before this Court 18.06.2009 8. Judgment and Decree passed by the trial Court granting the relief of Specific Performance 23.07.2009 9. Dismissal of the appeal in A.S.No.29 of 2009 by the Fast Track District Court, Dindigul. 30.03.2010 10. Filing of petition in TR.No.1 of 2011 to record the proposed party as a cultivating tenant before the Thasildar Natham Date of filing is not available 11. Orders passed in TR.No.1 of 2011 by the Tenancy Record Officer - cum - Thasildar, Natham 22.08.2011 12. Laying of execution in E.P.No.40 of 2011 for execution of the sale deed 2011 13. Filing of the suit in O.S.No.108 of 14 by the proposed party claiming permanent injunction 10.01.2014 14. Execution of sale deed in favour of the plaintiff/decree holder by the Subordinate Judge, Dindigul 23.03.2015 15. Filing of execution petition in E.P.No.145 of 2015 seeking delivery 2015 16. Laying of the impleading petition under Order 1 Rule 10 CPC by the proposed party in E.A.No.32 of 2018 05.02.2018 17. The order allowing the impleading petition in E.A.No.32 of 2018 24.07.2019 7. On a cursory perusal of the above happenings, any ordinary person can very well infer that the records were created subsequent to the dismissal of the Second Appeal by this Court, to prevent the decree holder from getting the property. 8. It is pertinent to mention that, in the suit filed by the proposed party in O.S.No.108 of 2014, he has produced only three documents along with the plaint, i.e., unregistered lease deed, dated 09.09.2019; order passed by the Tenancy Record Officer in T.R.No.1 of 2011, dated 22.08.2011 and the Adangal recorded in favour of the proposed party on 17.12.2011. 9. It is pertinent to mention that, in the suit filed by the proposed party in O.S.No.108 of 2014, he has produced only three documents along with the plaint, i.e., unregistered lease deed, dated 09.09.2019; order passed by the Tenancy Record Officer in T.R.No.1 of 2011, dated 22.08.2011 and the Adangal recorded in favour of the proposed party on 17.12.2011. 9. As rightly contended by the learned counsel for the decree holder, the proposed party has not produced any iota of evidence to prove that he has been in possession and enjoyment of the suit property from September 1999 till 2011. Moreover, there is absolutely no evidence produced to show that the proposed party is the cultivating tenant in respect of the suit property. It is evident from the records that during the pendency of the execution petition in E.P.No. 40 of 2011, since the wife of the first defendant had died, her other legal heirs, the defendants 2 and 3 were impleaded. 10. It is pertinent to mention that the defendants 1 to 4 had remained ex parte in the proceedings in E.P.No.40 of 2011 and consequently, the Court has executed a registered sale deed in favour of the plaintiff/decree holder. Even in the present application in E.A.No.32 of 2018, except the decree holder, all other respondents/Judgment Debtors had remained ex parte. If really, the proposed party was in possession, as a cultivating tenant, then the defendant should have taken that plea in the suit and appeal proceedings, but admittedly, no such stand was taken. 11. Considering the above, this Court has no hesitation to hold that the Judgment Debtors in collusion with the proposed party has created the unregistered lease deed, after the dismissal of the Second Appeal and managed to get orders from the Tenancy Record Officer fraudulently and that thereafter, filed the suit in O.S.No.108 of 2014 and lastly, the application under Order 1 Rule 10 CPC in execution proceedings. 12. Fraud and collusion vitiate everything. It is settled law that where a party gets an order by playing fraud upon the competent authority, such order cannot be sustained in the eyes of law. The Hon'ble Supreme Court in S.P. Chengalvaraya Naidu vs. Jaganath and others reported in AIR 1994 SC 853 has quoted the words of Chief Justice Edward Coke of Explerd, that fraud avoids all judicial acts, ecclesiastical or temporal. The Hon'ble Supreme Court in S.P. Chengalvaraya Naidu vs. Jaganath and others reported in AIR 1994 SC 853 has quoted the words of Chief Justice Edward Coke of Explerd, that fraud avoids all judicial acts, ecclesiastical or temporal. In another decision reported in AIR 1992 SC 1555 Shrisht Dhawan Vs. M/s. Shaw Brothers has held that fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct. Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. Generally, the act of fraud on Court is to be viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void abinitio. 13. No doubt, this Court is aware that dealing with the alleged fraud and collusion is beyond the scope of the present revision, but, this Court in exercise of its power of superintendence under Article 227 of the Constitution of India can deal with, when such a fraud and collusion in the Subordinate Court proceedings was brought to the notice of this Court. The Judgment debtors, in collusion with the proposed party and through the above said fraudulent acts have been preventing the decree holder from realising the fruits of the decree, despite the fact that the Judgment and Decree in favour of the decree holder was confirmed by this Court in the Second Appeal in the year 2011 itself. Hence, this Court concludes that the impugned order allowing the impleading petition is not good-in-law and the same is liable to be set aside and that necessary directions have to be issued for the early disposal of the execution proceedings for delivery. 14. In the result, the civil Revision Petition is allowed and the impugned order passed in E.A.No.32 of 2018 in E.P.No.145 of 2015 in O.S.No.202 of 2002 on the file of the Principal Subordinate Court, Dindugal is set aside and the Executing Court is directed to dispose of the Execution Petition for delivery within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, the connected Miscellaneous Petition is closed.