Madras High Court
M/S.Indian Autor Gas Company ... vs K.Radha Lakshmi on 9 November, 2021
C.R.P.(NPD).Nos.1043 and 1044 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(NPD).Nos.1043 and 1044 of 2021
and
C.M.P.Nos.8320 and 15810 of 2021
M/s.Indian Autor Gas Company Limited,
Represented by its Chief Executive Officer,
S.M.Antony Thomas @ A.S.T.Milton
First Floor, No.3/88, Mount Poonamallee Road,
Ramapuram, Chennai – 600 088.
.. Petitioner in both the CRPs
Vs.
1.K.Radha Lakshmi
2.K.Bala Boopathy
..Respondents in both the CRPs
PRAYER: Civil Revision Petitions filed under Article 227 of the
Constitution of India, praying to set aside the orders and decreetal orders
dated 29.03.2021 passed in E.A.Nos.121 of 2018 and 36 of 2017 in
E.P.No.2 of 2014 in O.S.No.281 of 2010 by the Subordinate Judge,
Poonamallee and allow the above Civil Revision Petitions.
1/10
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
For Petitioner : Mrs.Nalini I.Chidambaram, Senior Counsel
for Mrs.C.Uma in both the CRPs
For Respondents : Mr.P.Subba Reddy in both the CRPs
*********
ORDER
These Revisions have been filed against the orders passed by the
Executing Court in E.A.Nos.36 of 2017 and 121 of 2018 in E.P.No.2 of
2014 in O.S.No.281 of 2010.
2. The suit in O.S.No.281 of 2010 was filed by the respondents herein
seeking recovery of possession, for recovery of Rs.45,000/- per month
towards damages, for the unlawful occupation of suit premises from July
2008 till the date of delivery of the suit premises and for recovery of
Rs.21,000/- towards the arrears of rent for the month of June 2008.
3. The said suit came to be partially decreed on 16th August 2013
directing the defendants to handover possession, pay the plaintiffs
Rs.21,000/- as arrears of rent for the month of June 2008. There was also a
direction to pay the contractual rent from July 2008, till delivery of taking
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
possession at Rs.21,000/- per month.
4. Aggrieved by the said decree, the defendant preferred an appeal in
A.S.No.61 of 2013 and the plaintiffs also preferred an appeal in A.S.No.17
of 2015 against the dis-allowed portion of the plaint claim viz., damages.
The appeals came to be disposed of by the appellate Court on 15.12.2015.
Both the appeals were dismissed confirming the judgment and decree of the
trial Court.
5. Thereafter, the plaintiffs preferred Execution Petition in E.P.No.2
of 2014 seeking delivery of possession. In the said execution Petition, the
defendant/ judgment debtor filed E.A.No.36 of 2017 seeing dismissal of the
petition on the ground that the decree holder does not possess title to the
property and therefore the decree is not executable. Reliance was placed on
the order of the Hon'ble Supreme Court in S.L.P.No.3946 of 2012 dated
01.04.2013 in support of the said submission.
6. Another application was filed in E.A.No.121 of 2018 to call for the
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
records of the District Collector to show that the land does not belong to the
plaintiffs and its vest with the Government. The executing Court by
separate orders dated 29.03.2021 dismissed both the applications.
Aggrieved the defendant has come up with these Revision.
7. I have heard Mrs.Nalini Chidambaram, learned Senior Counsel
appearing for the petitioner and Mr.P.Subba Reddy learned counsel
appearing for the respondents.
8. Mrs.Nalini Chidambaram, learned Senior Counsel appearing for
the petitioner wold submit that in view of the order of the Hon'ble Supreme
Court made in S.L.P.No.3946 of 2012, the plaintiffs have lost title to the
property in question and therefore the very decree becomes in-executable.
9. I do not think it is open to the defendant to raise the question of
title to the property in execution proceedings. More so, when the order of
the Hon'ble Supreme Court has been produced before the trial Court and
marked as Ex.B19. It is after considering the effect of Ex.B19, the trial
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
Court granted a decree for possession which has been confirmed by the
appellate Court. Admitted position is that the judgment and decree of the
trial Court in O.S.No.281 of 2010 has become final and there was no further
appeal against the judgment of the appellate Court made in A.S.No.17 of
2015.
10. The decree having become final, I do not think it is open to the
judgment debtor to contend that the decree holder has lost right to recover
possession of the property on the basis of the decree. Such a question will
not be a question which would relate execution, discharge and satisfaction
of the decree covered under Section 47 of the Code of Civil Procedure.
11. The Hon'ble Supreme Court has repeatedly pointed out that the
executing Court cannot go beyond the decree and the scope of proceedings
under Section 47 of the Code of Civil Procedure are very limited and they
cannot be extended to re-examination of question of title, which was either
expressly or impliedly negatived by the trial Court while passing a decree
for possession.
12. I therefore do not think that the application under Section 47 of
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
the Code of Civil Procedure could be entertained by the executing Court
and it was justified in rejecting the application under Section 47 of the Code
of Civil Procedure. The Hon'ble Supreme Court has pointed out that the
scope of Section 47 of the Code of Civil Procedure is microscopic and lies
in a very narrow inspection hole in Dhurandhar Prasad Singh Vs.
Jaiprakash University and others reported in 2001 (6) SCC 534. The same
view was reaffirmed by the Hon'ble Supreme Court in Brakewel
Automotive Components (India) (P) Ltd., Vs. P.R.Selvam Alagappan
reported in 2017 (5) SCC 371. In view of the above judgments of the
Hon'ble Supreme Court, I do not think that the petitioner could be allowed
to raise the question of title in the execution proceedings.
13. As regards the challenge to the order in E.A.No.121 of 2018, the
same principle would apply. The petitioner by summoning the records of
the District Collector regarding the Urban Land Ceiling Proceedings seeks
to establish that the plaintiffs are not the owners of the property. I find that
the prayer is foreign to the scope of the execution proceedings and
executing Court has no power to go into the question of title.
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
14. Another contention raised by Mrs.Nalini Chidambaram, learned
Senior Counsel appearing for the petitioner in these Revisions is that since
the decree for eviction was passed for non-payment of renal arrears, since
the rental arrears have now been paid, the petitioner should be allowed to be
in possession. There is a decree for payment of rent also. As per the decree,
the petitioner is liable to pay rents from July 2008 to till date of delivery of
the suit premises at Rs.21,000/- per month. The payment of arrears of rent
is not a ground for this Court in Revision or for the executing Court to
nullify the decree.
15. It is seen from the records that the petitioner has deposited a sum
of Rs.25,00,000/- to the credit of the Civil Revision Petition as a condition
for grant of stay. This amount represents rent that is payable by the
petitioner to the respondents under the decree. Therefore, the respondents
are permitted to withdraw the said sum of Rs.25,00,000/- deposited by the
petitioner. The said withdrawal shall be in part satisfaction of the decree for
arrears of rent.
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
16. Hence, I do not see any ground to interfere with the order of the
trial Court impugned in these Revisions. Therefore, these Revisions fail and
are accordingly dismissed. No costs. Consequently, the connected
miscellaneous petition is closed.
09.11.2021
dsa
Index : No
Internet : Yes
Speaking order
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
To
The Subordinate Judge,
Poonamallee.
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C.R.P.(NPD).Nos.1043 and 1044 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(NPD).Nos.1043 and 1044 of 2021
09.11.2021
https://www.mhc.tn.gov.in/judis
