Madras High Court
R.Ramesh vs R.Matkuviyasarao (Died) on 15 December, 2021
C.R.P.(MD) No.1291 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.12.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.1291 of 2019
and
C.M.P(MD) No.7095 of 2019
R.Ramesh ... Petitioner
Vs.
1.R.Matkuviyasarao (died)
2.K.Nagarajan
Jeyamani (died)
3.P.Murugesan
4.Saroja
5.Latha Ramgopal
6.Raomuralithara Vaise
7.Veenarao ... Respondents
(R4 to R7 are brought on record as LRs of
deceased 1st respondent vide court order
dated 14.08.2020 made in CMP(MD) No.111795,
11798 and 11799 of 2019)
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C.R.P.(MD) No.1291 of 2019
PRAYER:- Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, to allow this civil revision petition by setting aside the
order and decree made in E.A.No.93 of 2011 in E.P.No.280 of 2008 in
O.S.No.17 of 2005 dated 23.04.2019 on the file of the Sub Court, Theni.
For Petitioner : Mr.M.Thirunavukkarasu
For R4 to R7 : Mr.H.Lakshmi Shankar
ORDER
The third party petitioner, whose application under Section
47 of CPC has been rejected by the learned subordinate Judge, Theni, is
before this Court challenging the said order.
2.The brief facts, which has culminated in the filing of the above
petition, are as follows:-
(i) The first respondent herein had filed a suit in O.S.No. 17 of
2005 against the respondents 2 to 4 herein and others for a declaration
that the suit schedule property belongs to him and for a mandatory
injunction to demolish the construction put up by the defendants 1 to 5 in
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C.R.P.(MD) No.1291 of 2019
the suit schedule property and also for a permanent injunction restraining
them from encroaching further into the suit property. The suit was
decreed by judgment and decree dated 10.04.2008. The said decree was
not challenged by the defendants. Thereafter, the first
respondent /plaintiff filed E.P.No.280 of 2008 on the file of the Sub
Court, Theni for delivery of possession of the suit property. Pending the
execution proceedings, the revision petitioner herein has come forward
with the impugned petition under Section 47 of CPC.
(ii) It is the case of the revision petitioner that on 31.01.2005 and
06.06.2007, the revision petitioner had purchased the properties from the
fifth defendant, who acted as power of agent of others and had put up a
temple for Lord Anjaneyar collecting funds from the general public and
that the temple is functional throughout the year and large number of
worshippers visited the said temple. It is when the Amin had come to
the property to take delivery that the petitioner had come to know about
the decree and the orders passed in E.P.No.280 of 2008.
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C.R.P.(MD) No.1291 of 2019
(iii) The petitioner had pleaded that the respondents had no nexus
to the suit property and it was only the petitioner who was entitled to the
suit property. The first respondent had fraudulently obtained the decree
suppressing the purchase made by the revision petitioner and without
impleading him and therefore, the decree is a nullity. He would therefore
pray that the decree in O.S.No.17 of 2005 be declared a nullity. He
would further argue that the property belonging to the temple was
entirely different from the suit property. It is his contention that the first
item of the suit property measuring 5 cents and 209 sq.ft., was
compromised in survey fields 1679/1, 1673/2 and 1672/1A and second
item property was comprised in survey Nos.1679/1 and 1672/1 whereas
the property purchased by the revision petitioner was comprised in
Survey No.1668/1 and in these survey numbers the first item of property
measured 1087 ½ sq ft (covered under sale deed dated 30.01.2005) and
1864 sq ft (covered under sale deed dated 06.06.2007) is situate.
Therefore, the plea that the suit property and the property belonging to
the revision petitioner are different properties, has also been addressed.
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C.R.P.(MD) No.1291 of 2019
(iv) The first respondent had filed an elaborate counter in which
he would submit that though the fifth defendant/power agent's counsel
was present in the Court during the time of arguments, he had not made
any submission and therefore, the defendants were set ex parte and
ultimately, ex parte decree came to be passed on 10.04.2008. The second
defendant had settled in Palani and the third defendant had passed away
and since no order was passed against the defendants 6 to 7, the decree
holder had moved execution against the defendants 1 and 4 and 5.
(v) The suit has been filed as per the description of property
contained in the sale deed under which the plaintiff had purchased the
property i.e., the sale deed dated 07.02.1997 from one T.Subash
Chandran and 10 others. The first respondent would further submit that
once the property had already been sold to the first respondent in the year
1997, no property remained in the hands of the said Subash Chandran
and others to further alienate the property. Any document created
thereafter is not binding on the plaintiff/first respondent and therefore,
the purchase by the revision petitioner which is subsequent purchase of
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C.R.P.(MD) No.1291 of 2019
the first respondent, does not convey any right to the revision petitioner.
The first respondent had also pleaded that the revision petitioner had
violated the decree for injunction granted. The Executing Court had
already ordered delivery and the present petition is nothing, but an
attempt to prevent the petitioner from taking possession of the property.
(vi) The learned Subordinate Judge on considering the evidence
submitted on either side, after hearing the argument of the counsel and
perusing the records, dismissed the petition. The learned Judge had in
detail discussed the identity of the properties and come to the conclusion
that the property purchased by the revision petitioner was the very same
property that has been sold to the plaintiff as early as in the year 1997
and that the revision petitioner does not have any right over the suit
property. Challenging the same the revision petitioner is before this
Court.
3.Mr.M.Thirunavukkarasu, learned appearing on behalf of the
petitioner would reiterate the stand that the property purchased by the
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C.R.P.(MD) No.1291 of 2019
revision petitioner is different from the suit property and this fact has not
been considered by the Court below. That apart, the revision petitioner
had not been made as a party to the suit, though he had purchased the
property in the year 2005 and 2007 respectively. He would further
submit that the order of the learned Judge requires to be revised, as the
substantial interest of the petitioner to the suit property has not been
properly considered.
4.Per contra, Mr.H.Lakshmisankar, learned counsel for the
respondents 4 to 7 would at the out set question the very maintainability
of Section 47 application. He would submit that the petition under
Section 47 of CPC was not maintainable, since the petitioner herein is a
third party to the proceedings. Further, even it is presumed that the
application is one filed under the provision of Order 21 Rule 97 CPC,
once again the suit is barred by the provision of Section 102 CPC, since
the petitioner herein is a subsequent purchaser. He would further submit
that the Court below have extensively discussed the identity of both the
properties and come to the conclusion that the suit property and the
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C.R.P.(MD) No.1291 of 2019
property purchased by the revision petitioner pending the proceedings, is
one and the same. He would therefore submit that no exception can be
taken to the order and the revision has to be dismissed.
5.Heard the learned counsel on either side and perused the records.
6.The Section 47 application has been filed on the basis that the
revision petitioner has not been made as a party to the proceedings,
despite the fact that he has purchased one property even prior to the
institution of the suit. Secondly, on the ground that the suit property and
the property purchased by the revision petition are not one and the same.
7.As regards the first argument, the Court has to examine whether
the revision petitioner has any right to the property on the basis of the
sale deed under which he had purchased the property. Admittedly, the
purchase by the first respondent/plaintiff is prior in point of time i.e., on
07.02.1997. After the sale in favour of the first respondent, the vendors
had no further right over the suit property, however the fifth defendant
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C.R.P.(MD) No.1291 of 2019
claiming to be the power agent had sold the very same property to the
revision petitioner under two sale deeds dated 31.02.2005 and
06.06.2007. Therefore, at the out set, the revision petitioner has no right
or title to the suit property as the property already stood in the name of
another person and the sale deed is executed by the third respondent,
who had no right or subsisting interest to the property.
8.Coming to the question regarding the identity of the properties,
the learned Subordinate Judge has extensively considered this point and
had observed as follows:-
nkw;go k.rh.M.1> 2 kw;Wk; v.k.rh.M.1 Mfpatw;wpy;
fl;Lg;gl;l brhj;Jf;fs; xnu brhj;Jf;fsh?.. vd;W mwpa[k;
tz;zk; ePjpkd;w Mizah; epakdk; bra;ag;gl;L ePjpkd;w
Mizah; mwpf;if kw;Wk; tiuglk; jhf;fy; bra;ag;gl;L
eP.k.rh.M.1> 2 Mf FwpaPL bra;ag;gl;Ls;sJ. me;j
Mtzq;fspd;go ghh;f;Fk;nghj kDjhuh; fpiuak;
bgw;w ,lk; giHa rh;nt vz;.1673/1V jw;nghija lt[d;
rh;nt ek;gh;2/1V1V tpYk; giHa rh;nt vz;.1673/2
kw;Wk; 1679/1Vy; fl;Lg;l;L jw;nghija lt[d; rh;nt vz;
2/1V1gp-y; fl;Lg;gl;L tUtjhf bjhptpf;fg;gl;Ls;sJ.
vdnt kDr; brhj;J giHa rh;nt vz; 1672/1V kw;Wk;
1679/1V kw;Wk; 1673/2 Mfpa rh;nt vz;fspy;
fl;Lg;gl;L tUtij bghWj;J Mizah; mwpf;if kw;Wk;
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C.R.P.(MD) No.1291 of 2019
tiuglq;fs; bjspt[g;gLj;Jk; epiyapy; k.rh.M.1>2 d;go
k.rh.M.1y; rh;nt vz; vJt[k; Fwpg;gplg;glhj epiyapYk;
k.rh.M.2y; rh;nt vz; 1675y; kDjhuh; fpiuak; bgw;w
brhj;J fl;Lg;gl;L tUtjhf Fwpg;gpl;L bjhptpf;fg;gl;Ls;s
epiyapYk; nkw;go k.rh.M.1>2 Mfpatw;wpd; mog;gilapy;
fpiuak; bgwg;gl;l ,Ubrhj;Jf;fSk; bjd;tlyhf
mLj;jLj;J mike;j brhj;Jf;fs; vd;gJk;
xg;g[f;bfhs;sg;gl;l epiyapYk; nkw;go brhj;Jf;fs; kDjhuh;
jug;gpy; Kd;dplg;gl;lJnghy giHa rh;nt vz; 1675y;
fl;Lg;gl;L tutpy;iy vd;gij bghWj;J Mizah;
mwpf;if kw;Wk; tiugl; epU:gpf;Fk; tz;zk; mike;Js;s
epiyapy; nkw;go k.rh.M.1>2y; fl;Lg;gl;l brhj;Jf;fs;
kDr; brhj;Jf;fs; my;y vd;gJk; me;j brhj;Jf;fs;
v.k.rh.M.1d;go 1k; vjph;kDjhuuhy; tHf;F jhf;fy;
bra;ag;gl;L mjpy; mtUf;F Mjuthf jPh;g;g[k;>
jPh;g;ghiza[k; Vw;gl;L mij jw;nghJ epiwntw;Wtjw;fhf
kD bra;J epYitapy; ,Ue;J tUk; epiyapy; nkw;go
brhj;Jff;fis bghWj;J nkw;go tHf;F
epYitapy; ,Uf;Fk;nghJ fpiuak; bgw;wjhf kDjhuh;
jug;gpy; Kd;dplg;gl;L mjpy; jdf;Fjhd; chpik K:y
ghj;jpaq;fd; ,Ug;gjhf bjhptpf;fg;gLk; thjk; Vw;g[ilajy;y
vd;nw ,e;ePjpkd;wk; jPh;khdpf;fpwJ.
9.Therefore, the second argument put forward by the petitioner that
the suit property and the property purchased by him are different
property, also fails. The argument of the revision petitioner /plaintiff
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C.R.P.(MD) No.1291 of 2019
that the petition itself is not maintainable, though not argued before the
trial Court appears to have some force. Section 47 of CPC reads as
follows:-
47.Questions to be determined by the Court executing
decree;- (1) All questions arising between the parties to the
suit in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree
and not by a separate suit.
(2) (omitted by Amendment Act, 1976)
(3) Where a question arises as to whether any person
is or is not the representative of a party, such question shall,
for the purpose of this section, be determined by the Court.
10.The petitioner herein clearly comes within the category of a
third party as he is neither the party nor their representative and
therefore, the petition filed under Section 47 of CPC is not maintainable.
Even assuming that the petition has been filed by the revision petitioner
as an obstructor under Order 21 Rule 97 once again the bar of Section
102 would apply, since he is the subsequent purchaser. Therefore, I do
not find any reason to interfere with the judgment and decree of the
Court below.
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C.R.P.(MD) No.1291 of 2019
P.T.ASHA, J.
cp
11.In the result, this Civil Revision Petition is dismissed.
No costs. Consequently, connected miscellaneous petition is closed.
15.12.2021
Index:Yes/No
Internet:Yes/No
cp
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:-
The Subordinate Judge,
Theni.
C.R.P(MD)No.1291 of 2019
and
C.M.P(MD) No.7095 of 2019
15.12.2021
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https://www.mhc.tn.gov.in/judis
