Madras High Court
Shalitheen (Died) vs Maria Bibi (Died) on 29 July, 2021
S.A. No.926 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A. No.926 of 2006
Shalitheen (Died)
2.Kathija Bee
3.B.Apsara Banu
4.Shakila
5.Appas
6.Salina Begam ... Appellants
(Appellants 2 to 6 brought on
record as LRs of the deceased
sole Appellant vide order of this
Court dated 09.01.2020 made in
CMP.No.22880, 22885 and
22882 of 2019 in S.A.No.926 of
2006)
Vs
1.Maria Bibi (Died)
2.Tamil Nadu Housing Board,
rep. by its Executive Engineer,
Tatabad,
Coimbatore – 12. ... Respondents
PRAYER: Second Appeal filed under Section 100 C.P.C. against the
judgment and decree of the Appellate Authority cum Subordinate Judge's
Court at Coimbatore dated 26.10.2005 in A.S.No.80 of 2005 confirming the
1/10
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Judgment and Decree of the I Additional District Munsif Court at
Coimbatore. Dated 08.04.2005 in O.S.No.1080 of 1997.
For Appellant : Mr.S.Mukunth
for M/s.Sarvabhauman Associates
For Respondent 1 : Died
For Respondent 2 : Mr.R.Jayaseelan
JUDGMENT
(Heard through video conferencing)
This second appeal has been filed challenging the concurrent findings
of the courts below.
2. The first Appellant(deceased) is the plaintiff in the suit
O.S.No.1080 of 1997 on the file of the District Munsif Court, Coimbatore.
The said suit was filed seeking for cancellation of the decree passed in
O.S.No.175 of 1990 on the file of the District Munsif Court, Coimbatore in
favour of the first respondent/first defendant. The suit O.S.No.175 of 1990
was filed by the first respondent against the Appellant and the second
respondent for redemption of mortgage and for delivery of possession in her
favour. The said suit came to be decreed exparte in favour of the first
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S.A. No.926 of 2006
respondent by the District Munsif Court, Coimbatore on 26.08.1994. An
application was also filed thereafter by the first Appellant (deceased) to set
aside the exparte decree dated 26.08.1994 passed against him by the District
Munsif Court, Coimbatore in O.S.No.175 of 1990. Thereafter an execution
petition was also filed by the first respondent in E.P.No.49 of 1995 to
execute the judgment and decree dated 26.08.1994 passed in her favour
against the first Appellant (deceased) and the second respondent in
O.S.No.175 of 1990. A section 47 CPC application filed by the first
Appellant (deceased) which has been numbered as E.A.No.492 of 1997 filed
in E.P.No.49 of 1995 filed by the first respondent to execute the judgment
and decree dated 26.08.1994 has also been dismissed by the District Munsif
Court, Coimbatore on 09.11.1998. After the dismissal of the said execution
application, the first Appellant/plaintiff (deceased) has filed the present suit
in O.S.No.1080 of 1997 on the file of the District Munsif Court, Coimbatore
which is the subject matter of this second appeal seeking to cancel the
judgment and decree dated 26.08.1994 passed in favour of the first
respondent against the first Appellant by the District Munsif Court,
Coimbatore in O.S.No.175 of 1990.
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S.A. No.926 of 2006
3. The case of the first Appellant/plaintiff is that he was put in
possession of the suit schedule property by the first respondent by availing a
loan of Rs.4,500/-. It is the case of the first Appellant/plaintiff that the first
respondent was an allottee of the suit schedule property under the second
respondent herein. According to the first Appellant/plaintiff, the decree
obtained by the first respondent/plaintiff on 26.08.1994 in O.S.No.175 of
1990 is null and void as without repaying the loan amount to him, the said
decree has been obtained. Under those circumstances, the Appellant/plaintiff
has sought for cancellation of Judgment and decree dated 26.08.1994 passed
in O.S.No.175 of 1990.
4. The first respondent/first defendant in the suit O.S.No.1080 of
1997 who is the plaintiff in O.S.No.175 of 1990 has categorically denied the
allegations of the first Appellant/plaintiff as seen from the written statement.
5. Issues were also framed by the Trial court and after trial, by
judgment and decree dated 08.04.2005 passed in O.S.No.1080 of 1997, the
District Munsif Court, Coimbatore dismissed the suit filed by the first
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S.A. No.926 of 2006
Appellant/plaintiff holding that the first Appellant/plaintiff does not have any
right, title or interest over the suit schedule property and holding that the suit
is not maintainable in view of the fact that already judgment and decree has
been passed by the District Munsif Court, Coimbatore in O.S.No.175 of
1990 against the Appellant/plaintiff who was the first defendant in that suit.
6. Aggrieved by the Judgment and Decree dated 08.04.2005 passed
by the District Munsif Court, Coimbatore in O.S.No.1080 of 1997, the first
Appellant/plaintiff preferred the regular first Appeal before the Sub Court,
Coimbatore in A.S.No.80 of 2005. By judgment and decree dated
26.10.2005, the lower appellate court also confirmed the findings of the trial
court and dismissed the appeal. Aggrieved by the same, this second appeal
has been filed.
7. This Court at the time of admission of this second appeal on
23.08.2006 formulated the following substantial questions of law:
“a) Whether the courts below are correct in law in
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S.A. No.926 of 2006
concurrently non-suiting the appellant on the basis of an
exparte decree passed in an earlier suit?
b) Whether the Courts below are correct in law in not
considering the fact that the 1st respondent has no right,
title or interest over the suit property and consequently in
the light of Ex.A1 ought not the Courts below have decreed
the suit as prayed for?
c) Whether the Courts below being the final Court of
fact is correct in law in not independently applying its mind
to the evidence on record?”
8. Admittedly, the first respondent (deceased) was an allottee of the
suit schedule property under the Tamil Nadu Housing Board, the second
respondent herein. It is also an admitted fact that the first Appellant/plaintiff
was put in possession in the suit schedule property only by the first
respondent(deceased). The first Appellant/plaintiff was also a party to the
earlier proceedings initiated by the first respondent/plaintiff in O.S.No.175
of 1990 on the file of the District Munsif Court, Coimbatore seeking for
redemption of mortgage and also for delivery of possession. It is also an
admitted fact that an exparte decree came to be passed against the first
Appellant/plaintiff in O.S.No.175 of 1990. The first Appellant/plaintiff has
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S.A. No.926 of 2006
himself admitted that he had also filed an application to set aside the exparte
decree dated 26.08.1994 passed in O.S.No.175 of 1990. Thereafter,
E.P.No.49 of 1995 has been filed by the first respondent(deceased) to
execute the exparte decree dated 26.08.1994 passed in her favour against the
first Appellant/plaintiff in O.S.No.175 of 1990. An application filed under
section 47 of CPC has also been filed by the first Appellant/plaintiff in
E.A.No.492 of 1997 challenging the exparte decree dated 26.08.1994
passed in O.S.No.175 of 1990. E.A.No.492 of 1997 filed by the
Appellant/plaintiff has also been dismissed by the District Munsif Court,
Coimbatore on 09.11.1998. All the aforementioned facts have not been
disputed by the first Appellant/plaintiff. If aggrieved, instead of challenging
the earlier decree passed against him in O.S.No.175 of 1990, the
Appellant/plaintiff has chosen to file a fresh suit against the first respondent
who is the plaintiff in O.S.No.175 of 1990 and in whose favour, a decree has
already been passed against the first Appellant/plaintiff for redemption of
mortgage as well as for possession which will amount to res judicata.
9. Unless and until the Court which passed the decree on the face of it
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lacks inherent jurisdiction or fraud has been established, a party cannot seek
to set aside the decree passed by a competent court. It is not in dispute that
the court which passed decree in O.S.No.175 of 1990 in favour of the first
respondent herein is a competent court and is having inherent jurisdiction to
decide the lis. As seen from the evidence available on record, fraud has also
not been established by the first Appellant/plaintiff. Both the courts below
have concurrently held that the first Appellant/plaintiff is not entitled for the
relief sought for in the plaint in O.S.No.1080 of 1997 on the file of the
District Munsif Court, Coimbatore.
10. There are no debatable issues of law involved in this second
appeal. The trial court as well as the lower appellate court has rightly non-
suited the first Appellant/plaintiff on the basis of exparte decree dated
26.08.1994 passed in favour of the first respondent in O.S.No.175 of 1990
which has attained finality. The trial court and the lower appellate court has
correctly considered Ex.A1 and has applied its mind independently and only
thereafter has rejected the contentions of the first Appellant/plaintiff. The
substantial questions of law formulated by this Court at the time of
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S.A. No.926 of 2006
admission of this second appeal are answered against the Appellant as there
are no substantial question of law involved.
11. In the result, the findings of the courts below are hereby
confirmed and this second appeal is dismissed. No costs.
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Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The Subordinate Judge's Court at Coimbatore
2. The I Additional District Munsif Court at Coimbatore
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S.A. No.926 of 2006
ABDUL QUDDHOSE, J.
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