Madras High Court
R. Murugan vs K.R.Shanmugam on 8 July, 2021
1 S.A.(MD)NO.854 OF 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.854 of 2007 and
C.M.P.(MD)Nos.5773 of 2018 & 4690 of 2020
1. R. Murugan ... Appellant/1st Respondent/
Plaintiff
Vs.
1. K.R.Shanmugam ... Respondent No.1/Appellant/
6th Defendant
2. Palaniappan Gounder
3. Rasappan
4. Ramasamy
5. Kandasamy Gounder(Died)
6. R.Indrani ... Respondents 2 to 6/
Respondents 2 to 6/
Defendants 1 to 3, 5 & 7
7. R.Gandhimathi
8. K.Kuppusamy
9. K.Jeevarathnam
10.K.Lakshmi ... Respondents 7 to 10
(R-7 is impleaded vide Order dated 08.01.2021 made
in C.M.P.(MD)No.4694 of 2020)
(R-8 to R-10 are brought on record as LRs. of the deceased
R-5 vide Order dated 29.06.2021 in
C.M.P.(MD)Nos.3730 to 3732 of 2021)
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 24.03.2006
made in A.S.No.149 of 2002 on the file of the Additional
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2 S.A.(MD)NO.854 OF 2007
Subordinate Judge, Dindigul, reversing the Judgment and
Decree dated 14.07.2000 made in O.S.No.143 of 1998 on the
file of the District Munsif cum Judicial Magistrate,
Vedasandur.
For Appellant : Mr.T.Lajapathy Roy
For R-1 : Mr.T.Arul,
for Mr.R.Nandakumar.
For R-3 : Mr.G.Prabhu Rajadurai
For R-7 : Mr.I.Robert Chandra Kumar
R-5 : Died.
R-2 and R-4 : No appearance.
R-8 to R-10 : Batta petition with due.
***
JUDGMENT
The plaintiff in O.S.No.143 of 1998 on the file of the
District Munsif cum Judicial Magistrate, Vedasandur, is the
appellant in this second appeal.
2. The case of the appellant is that the suit property
was illegally sold in an auction held on 20.07.1983. Seeking
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3 S.A.(MD)NO.854 OF 2007
declaration for nullifying the said auction proceedings, the
appellant herein instituted the said suit.
3. The grandfather of the appellant, namely,
Palaniyappa Gounder had borrowed certain sum of money
from one Kandasamy Gounder. He failed to repay the said
amount. Kandasamy Gounder filed O.S.No.86 of 1979 for
recovering the said amount. In the said suit, he also obtained
attachment order in respect of the suit property in I.A.No.139
of 1979. The suit was later transferred to the District Munsif
Court and renumbered as O.S.No.1048 of 1979. The suit came
to be decreed on 24.01.1982. Even after the decree,
Palaniyappa Gounder did not come forward to clear the
liability. Hence, execution petition was filed and in the said
execution petition, the property in question was brought to
sale on 20.07.1983 and one Shanmugam who is shown as the
first respondent purchased it. The stand of the appellant
herein is that the suit property totally measured more than 4
acres. It was absolutely unnecessary to bring the entire
property to auction. The proceedings clearly suffered from
vice of excessive execution. He would also point out that as
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4 S.A.(MD)NO.854 OF 2007
early as in the year 1970, a family arrangement was entered
into as evidenced in Ex.A.1 dated 27.06.1970. In the said
family arrangement, sons Rasappan, Ramasamy and Arjunan
were parties. The stand of the appellant is that by virtue of his
subsequent birth in the family, he became entitled to a share
in the suit property. The claim of the appellant found
acceptance at the hands of the trial Court. The trial Court vide
judgment and decree dated 14.07.2000 decreed the suit as
prayed for and set aside the auction proceedings. Questioning
the same, the auction purchaser, namely, Shanmugam filed
A.S.No.149 of 2002 before the Additional Sub Court, Dindigul.
The first appellate Court reversed the judgment and decree
passed by the trial Court and dismissed the suit. Challenging
the same, this second appeal came to be filed.
4. The learned counsel appearing for the plaintiff/
appellant reiterated all the contentions set out in the
memorandum of grounds and called upon this Court to admit
the second appeal, call for the records and thereafter, take it
up for final hearing.
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5 S.A.(MD)NO.854 OF 2007
5. Per contra the learned counsel appearing for the
contesting respondents submitted that the impugned
judgment and decree of the first appellate Court do not call for
any interference.
6. I carefully considered the rival contentions and
went through the evidence on record.
7. Certain subsequent developments have now taken
place during the pendency of this second appeal. The property
in question had been re-sold by the auction purchaser
Shanmugam in favour of the daughter of Rasappan/third
respondent herein recently by a registered sale deed.
Rasappan who was also aggrieved by the auction proceedings
had therefore withdrawn S.A.(MD)No.505 of 2006 filed by him
questioning the impugned judgment and decree.
8. The contentions advanced by the learned counsel
appearing for the appellant do impress me. I would have gone
the whole hog and held that this was a clear case of excessive
execution. But then this is not the first round of challenge. As
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6 S.A.(MD)NO.854 OF 2007
rightly pointed out by the learned counsel appearing for the
auction purchaser/first respondent, the father of the appellant
herein filed obstruction petitions in the execution proceedings.
E.A.No.337 of 1985 filed by the appellant's father which was
renumbered as E.A.No.30 of 1995 and the same was
dismissed. Questioning the same, the appellant's father filed
C.R.P.No.24 of 1995. The said C.R.P. was also dismissed by
the High Court. If I sustain the stand of the appellant, that
would amount to reviewing the earlier order passed in
C.R.P.No.24 of 1995.
9. The auction proceedings had taken place as early
as on 20.07.1983. We are now in 2021. When Ex.A.1 was
executed the appellant was not even born. Courts ought not to
reopen settled issues. Even though there is considerable force
in some of the contentions advanced by the learned counsel
for the appellant, since the factual issues got concluded in
C.R.P.No.24 of 1995, I am not in a position to hold in favour of
the appellant. No substantial question of law arises for
consideration.
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7 S.A.(MD)NO.854 OF 2007
10. This second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
08.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
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:
1. The Additional Subordinate Judge,
Dindigul.
2. The District Munsif cum Judicial Magistrate,
Vedasandur.
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8 S.A.(MD)NO.854 OF 2007
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.854 of 2007
08.07.2021
https://www.mhc.tn.gov.in/judis/
