Madras High Court
M.Thangamani vs V.Sellamuthu on 1 December, 2021
CMSA.No.68 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CMSA.No.68 of 2021
and
CMP.No.15588 of 2021
M.Thangamani ...Appellant
Vs.
1.V.Sellamuthu
2.N.Palanisamy
3.R.Kandappan
T.L.Manickam (Died)
N.Natarajan (Died)
4.M.Kuladaiammal
5.J.Saraswathi
6.Kalyani ..Respondents
Prayer: Civil Miscellaneous Second Appeal filed under Order 43 Rule 1(i)
r/w. Section 100 of C.P.C., against the fair and final order in CMA.No.13 of
2020 dated 16.02.2021 confirming the fair and final order in EP.No.32 of
2009 (in OS.No.234 of 1991 Sub-ordinate Court, Sankari) dated 06.01.2020
on the file of the Sub-Court, Tiruchengode.
1/11
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CMSA.No.68 of 2021
For Appellant : Mr.A.Sivaji
For Respondents :Mr.N.Manokaran for R1 to R3 /
Caveator
JUDGMENT
This civil miscellaneous second appeal is directed against the
order confirming the judgment of the Additional district Judge, Namakkal in
CMA.No.13 of 2020, the appeal against the order of the Sub-Court, Sankari
made in EP.No.32 of 2009 dated 06.01.2020.
2.The proceedings arose out of a suit for specific performance laid
by the respondents 1 to 3 herein, against one M/s. T.L.Manickam and
N.Natarajan. The suit came to be decreed by the Sub-Court, Sankari on
27.02.2001. An appeal was filed against the said judgment and decree in
AS.No.58 of 2002 before this Court, which came to be dismissed on
24.03.2009. The Appellant herein, who was impleaded as the legal
representative of the deceased 1st defendant in the suit along with the other
defendants challenged the correctness of the judgment of this Court in
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CMSA.No.68 of 2021
CA.No.4264 of 2010 before the Hon'ble Supreme Court. The said Civil
Appeal also came to be dismissed on 16.11.2016. Thereafter, the decree
was put in execution.
3.Before the Executing Court, the appelalant herein, filed an
application in EA.No.236 of 2017 purportedly under Order 21 Rule 58
projecting an independent claim over the property. The said execution
application came to be dismissed by the Trial Court on 21.03.2018. An
appeal in CMA.No.7 of 2018 filed by the appellant was also dismissed on
05.07.2019. Undeterred the appellant filed an appeal in CMSA.No.21 of
2020 in this Court and the same was dismissed on 25.08.2020.
4.The Appellant objected to the execution of the decree before the
Executing Court on three grounds. The first ground is that the draft sale
deed was not filed along with the Execution Petition. The second one is that
the decree does not contain a clause for delivery of possession and
therefore, the petitioners / decree holders cannot seek delivery of possession
and the third ground is that due to considerable passage of time, the value of
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CMSA.No.68 of 2021
the property had increased and therefore, in equity, the decree cannot be
executed. The Executing Court rejected all the three contentions and
directed the decree holders to file a draft sale deed by its order dated
06.01.2020.
5.The petitioners preferred a civil revision petition against the
said order in CRP.Sr.No.44438 of 2020. This Court, by order dated
14.07.2020 concluded that an appeal would lie against the order of the
Executing Court under Order 43 Rule 1(1) of C.P.C. Upon such conclusion,
this Court directed the appellant to file an appeal. This Court also favoured
the petitioner with an order of interim stay for a peirod of six weeks to
enable to the petitioner to move the Appellate Court, considering the
lockdown imposed due to the Pandemic. The petitioner preferred an appeal
in CMA.No.13 of 2020. The Additional District Judge, Namakkal, who
heard the appeal rejected all the contentions of the petitioner and dismissed
the appeal by order dated 16.02.2021. Aggrieved, the Appellant has come
up with this appeal.
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CMSA.No.68 of 2021
6.Heard Mr.A.Sivaji, learned counsel appearing for the Appellant
and Mr.N.Manokaran, learned counsel appearing for the respondents 1 to 3.
7.Mr.A.Sivaji, learned counsel appearing for the Appellant would
vehemently contend that the Executing Court erred in entertaining the
Execution Petition without a copy of the draft sale deed being produced. In
an Execution under Order 21 Rule 34, where a decree directing execution of
a document is sought to be executed, the decree holder can seek execution
and the production of a draft sale deed or a draft of the document that is
directed to be executed is not mandatory. After hearing the judgment
debtor, it is always open to the Executing Court to direct the decree holder
to file a draft document and thereafter, approve the same for execution. I
therefore, do not think there is no substance in the first objection. I am
supported in this view of mine by the judgment of this Court in
Shanmugam Vs. Arthanari reported in 2010 (2) MWN (Civil) 701.
8.The second objection that is raised is that the decree does not
contain a clause for delivery of possession, therefore, the decree cannot be
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CMSA.No.68 of 2021
executed. Mr.A.Sivaji would rely upon the judgment of this Court in
Vasantha Vs. Manickam @ Thandapani & Another reported in 2017 (2)
LW 161 wherein, Hon'ble Mr.Jusitce M.V.Muralidaran had held that the
Executing Court cannot direct delivery of possession, if the decree for
specific performance does not direct delivery of possession. The learned
Judge, while doing so, had relied upon the judgment of the Hon'ble
Supreme Court in Adcon Electronics Pvt. Ltd., Vs. Daulate and Another
reported in 2002 (1) LW 368. Unfortunately, the attention of this Court was
not drawn to the subsequent judgment of the Hon'ble Supreme Court in
Excel Dealcomm Private Limited Vs. Asset Reconstruction Company
(India) Limited and Others reported in 2015 (8) SCC 219 wherein, the
Hon'ble Supreme Court had explained the judgment in Adcon Electronics
(P) Ltd., Vs. Daulate and Another and had held that a decree for specific
performance would include a direction for delivery of possession. Absence
of a specific clause directing delivery of possession is not mandatory.
9.Apart from the above, even in Babu Lal Vs. M/s.Hazari Lal
Kishori Lal and Others reported in (1982) 1 SCC 525, the Hon'ble
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CMSA.No.68 of 2021
Supreme Court had considered the scope of a decree for specific
performance. The Hon'ble Supreme Court after considering the Section 22
of the Specific Relief Act had held that it is not even incumbent upon the
plaintiff to sue for possession. In another judgment in M.Mohan Vs.
M.Kamalakannan reported in 2014 (3) MWN (Civil) 168, the Hon'ble
Mr.Justice R.S.Ramanathan had considered the same question and had
concluded that a clause for delivery of possession was inbuilt in the decree
for specific performance and therefore, there need not be a decree, directing
delivery of possession. In other words, it was held that a decree for specific
performance encompasses in itself a direction for delivery of possession.
Reference has also been made to the earlier judgment of the Hon'ble
Mr.Justice Mr.R.S.Ramanathan in Krishnamurthy Gounder Vs.
Venkatakrishnan reported in 2012 (1) CTC 823 wherein, the same position
was reiterated after referring the Babu Lal's case cited supra.
10.I had an occassion to deal with the very same question in
P.Baskar Vs. Aditya Real Estates reported in 2018 (1) CTC 342 wherein,
after referring to the judgments of the Hon'ble Supreme Court in Babu Lal
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CMSA.No.68 of 2021
Vs. Hazari Lal, Adcon Electronics and Excel Dealcomm Pvt. Ltd., I had
concluded that a decree for specific performance simplicitor would take in
itself a decree for possession also. I had reiterated the said position again in
Kanniappan and Others Vs. Yousuff Sait and others reported in 2020 (4)
LW 851.
11.In the light of the properenderence of judicial opinion, I do not
think, the petitioner could be allowed to raise the issue regarding absence of
a decree for delivery of possession and a decree for specific performance
would take in itself a decree for possession and also. The Judgment of the
Hon'ble Mr.Justice M.V.Muralidaran taking the contrary view, in my
considered opinion, cannot be treated as a valid precedent, in view of the
fact that the subsequent judgment of the Hon'ble Surpeme Court in Excel
Dealcomm, explaning the judgment in Adcon Electronics was not brought
to the notice of the learned Judge. Hence, the second objection fails.
12.As regards the third objection, Mr.A.Sivaji would rely upon the
judgment of this Court in A.Sridharan Vs. B.Gowri reported in 2021 (4)
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CMSA.No.68 of 2021
CTC 88 to contend that taking into account the passage of time, this Court
has got the power to work out the equities. The judgment in A.Sridharan
Vs. B.Gowri was rendered in an appeal against the decree for specific
performance wherein, this Court took note of the subsequent increase in
prices and granted specific performance decree subject to payment of a
higher sale price. I do not think, sitting in an appeal arising out of
Execution Proceedings, I can venture to do, what has been done by Hon'ble
Mr.Jusice N.Sathish Kumar in A.Sridharan Vs. B.Gowri. The Executing
Court is bound by the decree and it has to execute the decree as it is. The
power of the Executing Court cannot extend beyond execution of the
decree. I therefore, do not see any reason to entertain the appeal. This
appeal therefore fails and it is accordingly, dismissed without being
admitted. No costs. Consequently, connected miscellaneous petition is
closed.
01.12.2021
kkn
Index:Yes
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CMSA.No.68 of 2021
Internet:Yes
Speaking
To:-
1.The Additional District Court,
Namakkal.
2.The Sub-Court,
Tiruchengode.
https://www.mhc.tn.gov.in/judis
CMSA.No.68 of 2021
R.SUBRAMANIAN, J.
KKN
CMSA.No.68 of 2021
and
CMP.No.15588 of 2021
01.12.2021
https://www.mhc.tn.gov.in/judis
