Madras High Court
Panneerselvam vs Sivaganesh on 18 February, 2021
CRP.NPD.No.4042 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.4042 of 2014 and
MP.No.1 of 2014
1.Panneerselvam
2.Maria Anandan ..Petitioners
Vs.
1.Sivaganesh
2.Christina Mary (died)
3.Minor Sunshansala
D/o.Arokiyasamy
Rep.by Guardian Father Arokiyasamy
4.Minor Winshala
D/o.Arokiyasamy
Rep.by Guardian Father Arokiyasamy
(RR3 & 4 brought on record as LR's of the
deceased 2nd respondent viz. Christina
Mary vide Court order dated 06.01.2021
made in CMPs 329, 330 and 332 of 2020
in CRP.No.4042 of 2014 ..Respondents
PRAYER:
The Civil Revision Petition is filed under Section 115 of the CPC
against the fair and decreetal order in EA.No.56 of 2014 in EP.No.122
of 2009 in OS.No.10 of 2001 dated 09.09.2014 on the file of the I
Additional Subordinate Judge, Cuddalore.
1/8
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CRP.NPD.No.4042 of 2014
For Petitioners : Mr.N.Suresh
For Respondents
For R1 : M/s.R.Meenal
R2 : Died(steps taken)
R3 & R4 : Not ready in notice
ORDER
The civil revision petition is directed as against the fair and
decreetal order in EA.No.56 of 2014 in EP.No.122 of 2009 in OS.No.10
of 2001 dated 09.09.2014 on the file of the I Additional Subordinate
Judge, Cuddalore thereby dismissing the petition filed under Section 47
of CPC by the petitioners herein.
2. The petitioners are the third parties in the execution petition
filed by the first respondent herein. The first respondent filed suit for
specific performance as against the deceased second respondent in
respect of the suit property. The said suit was decreed by the judgment
and decree dated 14.08.2003. Aggrieved by the said judgment and
decree, the second respondent went upto this Court and confirmed the
decree of specific performance. Thereafter, the petitioners filed execution
petition in EP.No.122 of 2009 before the Execution Court. While pending
execution petition, the petitioners herein who are none other than the
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CRP.NPD.No.4042 of 2014
brothers of the second respondent herein, filed suit for partition in
OS.No.195 of 2011 in respect of the very same suit property in OS.No.10
of 2001. Though the first respondent i.e. decree holder in OS.No.10 of
2001 is also party in the partition suit, the first respondent failed to
appear before the trial court in the partition suit and he was set exparte.
Thereafter, the partition suit in OS.No.195 of 2011 was decreed in their
favour.
3. On perusal of the judgment in OS.No.195 of 2011, the second
respondent i.e. the first defendant in the partition suit was also set
exparte and the suit was decreed exparte as against all the defendants,
i.e. the respondents 1 and 2 herein. On the strength of the judgment and
decree passed in the partition suit in OS.No.195 of 2011, the petitioners
filed petition under Section 47 of CPC before the execution court in
EP.No.122 of 2009. The petitioners marked the plaint, judgment and
decree in OS.No.195 of 2011 as Ex.P1 to P3. It is also curious to note that
the second respondent filed counter stating as follows:
kDjhuh;fs; kDtpy; brhy;yg;gl;l tpgu';fis ,e;j
vjph;kDjhuh; Kw;wpYk; xg;gf;bfhs;fpwhh;/ kDjhuh;fs;
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CRP.NPD.No.4042 of 2014
bfhLj;jpUf;Fk; bkapd; kDtpd; cz;ik mk;r';fis bjhptpj;J
tphpthd Ml;nrgizia ,e;j vjph;kDjhuh; jhf;fy;
bra;jpUf;fpwhh;/ epiwntw;W kDtpy; brhy;yg;gl;l brhj;J
bghJ FLk;g brhj;jhFk;/ epiwntw;W kDtpy; brhy;yg;gl;l
brhj;J bghJ FLk;g brhj;jhFk;/ mjpy; kDjhuh;fSf;F ghfk;
bfhLg;gjpy; ve;jtpj Ml;nrgiza[k; ,y;iy/ mJ rk;ge;jkhf
bkapd; kDtpy; tptukhf brhy;yg;gl;Ls;sJ/ kDit mDkjpj;J
cj;juthf 2?k; vjph;kDjhuh; gpuhh;j;jpf;fpwhh;/
According to her, the suit property belongs to the joint family property
and therefore she had no objection to give their share. According to the
petitioners, after having knowledge about the decree passed in the
specific performance suit filed by the first respondent as against the
second respondent in OS.No.10 of 2001, the petitioners filed partition suit
suppressing the fact that the first respondent already obtained decree of
specific performance as against the second respondent in respect of the
very same suit property. Conveniently the second respondent was absent
before the trial court and the suit was decreed exparte. Therefore, the
decree obtained in collusion suit between the petitioner and the second
respondent herein. Though the first respondent was made as party,
unfortunately the first respondent failed to appear before the trial court
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CRP.NPD.No.4042 of 2014
and as against the exparte decree, the first respondent filed petition to set
aside the exparte decree with delay petition. However, the said delay
petition was dismissed. Aggrieved by the same, the first respondent
preferred civil revision petition before this Court and it is pending.
4. At that juncture, the petitioners filed the present petition
under Section 47 of CPC claiming share in the suit property. In fact, the
entire suit property was purchased by the second respondent and as such
it is a self acquired property of the second respondent herein. For the said
property, the petitioners happened to be brothers of the second
respondent they simply filed suit for partition and obtained decree in a
partition suit only to deny the claim of the first respondent in the specific
performance decree.
5. Though the trial court without discussing the above, only
citing the judgments dismissed the petition, this Court finds no merits in
the petition filed under Section 47 of CPC. One of the judgments cited by
the court below in the case of Satyawati Vs. Rajinder Singh and
another reported in 2013 (5) LW 697, in which it is held that once the
decree was made, executing court should not have looked into other
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CRP.NPD.No.4042 of 2014
reports which had been submitted to it afterwards. Admittedly, the
petitioners obtained decree in the partition suit on 11.01.2013 very much
after filing the execution petition. Therefore, this Court does not find any
infirmity or illegality in the order passed by the court below.
6. Accordingly, this civil revision petition is dismissed.
Consequently, connected miscellaneous petition is closed. No order as to
costs.
18.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.NPD.No.4042 of 2014
To
The I Additional Subordinate Judge,
Cuddalore.
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CRP.NPD.No.4042 of 2014
G.K.ILANTHIRAIYAN,J.
lok
CRP.NPD.No.4042 of 2014
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CRP.NPD.No.4042 of 2014
18.02.2021
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