Madras High Court
N.Karunamoorthy vs V.Mathiazhagan on 4 March, 2021
C.M.S.A.No. 41 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No. 41 of 2014
N.Karunamoorthy ..Appellant
Vs
V.Mathiazhagan ..Respondent
Appeal filed under Section 100 of Code of Civil Procedure
against the decree and judgment dated 03.11.2014 made in
C.M.A.No.5 of 2014 on the file of the Subordinate Judge,
Poonamallee confirming the fair and decreetal order dated
06.02.2014 made in E.A.No.19 of 2008 in E.P.No.55 of 2005 in
O.S.No.200 of 1990, on the file of the District Munsif, Ambattur.
For Appellant : Mr.A.V.Arun
For Respondent : Mr.M.V.Seshachari
JUDGMENT
The facts in nutshell that are to be considered in the present
civil miscellaneous second appeal are that on 14.05.1987, an
agreement for sale was entered into between the
respondent/plaintiff and the first defendant/S.Muthukrishnan. On
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C.M.S.A.No. 41 of 2014
25.04.1988, the said property was conveyed by the first defendant
in favour of the second defendant/T.Jane in Doc.No.2946/1988 at
SRO, Ambattur which was marked as Ex.P3. The
respondent/plaintiff instituted a suit for specific performance in
O.S.No.200 of 1990 before the Sub-Court, Poonamallee, as against
defendants 1 and 2/S.Muthukumar and T.Jane. The suit was
decreed in favour of the plaintiff granting a relief of specific
performance on 05.02.1992. The second defendant in the suit
T.Jane had conveyed the said property in favour of one
Sargunakumar on 21.08.1992 vide sale deed in Doc.No.8701 of
1992, SRO Ambattur.
2. It is pertinent to note that the property was conveyed as
vacant land. Sargunakumar had obtained the building approval for
construction of building in the said property on 23.12.1992. In the
year 1998, the respondent/plaintiff in O.S.No.200 of 1990 filed
execution petition for execution of sale deed in his favour in E.P.No.
5 of 1998. On 29.09.2000, the Sub-Court, Poonamallee, had
executed the sale deed registered in favour of the
respondent/plaintiff vide Document No.5430 of 2000, SRO,
Ambattur. During the year 2004, due to change in the pecuniary
jurisdiction of the Courts, E.P.No. 5 of 1998 was transferred to the
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C.M.S.A.No. 41 of 2014
file of the District Munsif Court at Ambattur and re-numbered as
E.P.No.13 of 2004. On 19.07.2004, the suit property had been sold
by Sargunakumar to the appellant. On 07.01.2005, the original sale
deed was received from the Sub-Registrar Office at Ambattur and
E.P.No. 13 of 2004 was closed. On 26.04.2005, the
respondent/plaintiff had filed E.P.No.55 of 2005 for delivery of the
suit property. On 13.02.2008, the appellant, who was the third
party purchaser has filed an obstruction petition in E.A.No. 19 of
2008 in E.P.No.55 of 2005 under Order 21 Rule 97 CPC. The third
party obstruction petition was dismissed on 06.02.2014 by the
learned District Munsif Court at Ambattur, against which C.M.A.No.5
of 2014 was filed by the obstruction petitioner and the said appeal
was also dismissed on 03.11.2014 by the Sub-Court, Poonamalee.
Challenging the said two judgments, the present second appeal has
been preferred.
3. The substantial question of law raised on behalf of the
appellant is that the execution petition in E.P.No.55 of 2005 was
filed after a lapse of twelve years from the date of passing of the
decree in O.S.No.200 of 1990. Under Article 136 of the Limitation
Act, 1963, the limitation period contemplated is twelve years.
Therefore, the execution proceeding ought not to have been
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C.M.S.A.No. 41 of 2014
numbered at all. Thus, the trial Court as well as the First Appellate
Court erroneously proceeded on the basis that the execution
proceedings was filed within the time limit. At the outset, it is
contended that the execution petition filed after a lapse of twelve
years from the date of passing of the decree is not maintainable.
4. Learned counsel appearing on behalf of the respondent
objected the said point on the ground that it was not the execution
petition filed at the first instance by the decree holder. The
execution petition was initially filed in E.P.No.5 of 1998 itself and in
the said execution proceedings, the Sub-Court, Poonamallee,
executed the sale deed in favour of the respondent/plaintiff vide
Document No.546 of 2000, and, therefore, the decree in all respects
was executed by executing court in favour of the
respondent/plaintiff and, therefore, the period of limitation as raised
would not arise at all.
5. As far as E.P.No.55 of 2005 is concerned, the occupant of
the suit property has refused to vacate and under those
circumstances, the decree-holder filed the execution proceeding for
handing over the possession pursuant to the sale deed executed by
the Court in E.P.No. 5 of 1998. Therefore, the subsequent execution
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C.M.S.A.No. 41 of 2014
proceeding, cannot be construed as the execution proceeding filed
pursuant to the decree and in fact, the said execution proceedings
was filed on account of the fact that the occupant of the said
property has not been handed over the possession and, therefore,
the execution proceeding was filed for securing the possession of
the suit property.
6. Considering the question of law raised, this Court is of the
considered opinion that Article 136 of the Limitation Act
contemplates twelve years for execution of any decree. In the
present case, the suit was instituted for specific performance. The
suit was decreed in favour of the plaintiff on 05.02.1992. Pursuant
to the decree, execution petition was filed by the decree-holder in
the year 1998 in E.P.No.5 of 1998. The decree was passed to
execute the sale deed on payment of balance sale-consideration in
the suit for specific performance. The balance sale-consideration
was paid by the decree-holder and, therefore, the decree holder
filed E.P.No. 5 of 1998 for execution of the sale deed in his favour.
The Executing Court, mainly, the Sub-Court, Poonamallee,
registered the sale deed in favour of the respondent/plaintiff on
29.09.200 vide Document No.5460/2000, SRO, Ambattur. Thus, the
decree was executed as it is and therefore, the subsequent
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C.M.S.A.No. 41 of 2014
execution proceedings cannot be construed as an execution
proceeding instituted in order to execute the decree. The
subsequent execution proceeding was instituted in view of the
subsequent cause of action that arose on the basis that the
occupant of the suit property refused to vacate the premises to
handover the same to the decree-holder. Thus, the subsequent
execution proceeding, is a fresh cause that arose on account of the
fact that in spite of the title transfer in the name of the decree-
holder, the occupant failed to hand over the possession. Thus, the
second execution proceeding which is nothing but a continuation
cannot be construed as fresh initiation of execution proceeding to
execute the decree which was otherwise executed in E.P.No. 5 of
1998 on 29.09.2000.
7. The question that would arise is whether the occupant of
the suit property which was transferred in the name of the decree-
holder pursuant to the decree can institute EA proceeding under
Order 21 Rule 97 CPC on the ground that the execution proceeding
is barred by the period of limitation. The answer is that the
Executing Court executed the decree in favour of the decree-holder.
The sale deed was executed in favour of the decree holder. Once
the title is transferred in favour of the decree-holder pursuant to the
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C.M.S.A.No. 41 of 2014
decree passed, thereafter the occupants are construed as
unauthorized occupants and such unauthorized occupants cannot
institute EA proceedings on the ground that the subsequent
proceeding was filed after a lapse of twelve years in view of the fact
that the original execution proceeding were executed by the
executing Court by registering the sale deed in favour of the decree-
holder.
8. As far as the rights of the appellant are concerned, his right
after the execution of sale deed by the executing court in E.P.No.5
of 1998 on 29.9.2000 and with effect from 29.09.2000, the decree-
holder became an absolute owner of the suit property. When the
decree-holder became the absolute owner of the said property, he
has got every right to seek possession in view of the fact that the
occupant refused to hand over the possession. Thus, in the present
case, the appellant has not established even a semblance of legal
right so as to raise the point of limitation or to adjudicate the issue
on merits with reference to his purchase or any payment to the
judgment debtor or to any other vendor subsequent to the passing
of decree in O.S.No.200 of 1990. Even in such circumstances, the
third party bonafide purchaser suffered monetary loss and their
right would be against the person from whom they purchased and
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C.M.S.A.No. 41 of 2014
not against the decree-holder as there was no nexus between the
decree-holder and the third party purchaser, more specifically, in
the present case. Under such circumstances, this Court do not find
any perversity or infirmity as such with reference to the findings as
well as the decision arrived.
9. The question of law raised in respect of period of limitation
is also answered and, therefore, the judgment and decree dated
03.11.2014 passed in C.M.A. No.5 of 2014 confirming the fair and
decreetal order dated 06.02.2014 passed in E.A.No. 19 of 2008
stands confirmed and the civil miscellaneous second appeal stands
dismissed. No costs. Consequently, the connected M.P.No.1 of 2014
is closed.
04.03.2021
Index: Yes/No
ssm
To
1.The Subordinate Judge, Poonamallee.
2.The District Munsif, Ambattur.
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C.M.S.A.No. 41 of 2014
S.M.SUBRAMANIAM, J.
(ssm)
C.M.S.A.No. 41 of 2014
04.03.2021
https://www.mhc.tn.gov.in/judis/
