Madras High Court
A.Latha vs S.Elamaran on 23 November, 2021
C.R.P.(NPD).No.2502 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.2502 of 2021
and
C.M.P.No.18851 of 2021
A.Latha .. Petitioner
Vs.
1.S.Elamaran
2.Habibunniasa Begam .. Respondents
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, praying to set aside the fair and decreetal order passed by
the learned Sub-Judge, Nagapattinam in unnumbered E.A.No.-- of 2021 in
E.P.No.91 of 2019 in O.S.No.63 of 2002 dated 15.09.2021 and allow the
above C.R.P.
For Petitioner : Mr.S.Parthasarathy
******
1/5
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2502 of 2021
ORDER
The petitioner, aggrieved by the rejection of his application filed
under Section 47 of the Code of Civil Procedure has come up with this
Revision.
2. A suit for specific performance was filed by the 1 st respondent
against the petitioner and the 2nd respondent. The trial Court granted the
alternative relief of refund of advance while dismissing the suit for specific
performance. An appeal was filed by the plaintiff in A.S.No.101 of 2003.
The said appeal came to be dismissed on 05.03.2004. The plaintiff carried
the matter to this Court by way of a second appeal in S.A.No.1497 of 2004.
The second appeal was allowed on 29.06.2018 granting a decree for specific
performance.
3. E.P.No.91 of 2019 was filed by the decree holder viz., 1st
respondent seeking execution of the said decree. The petitioner filed an
application under Section 47 of the Code of Civil Procedure seeking a
declaration that the decree is a nullity on the ground that the plaintiff had
not sought for setting aside the sale in her favour that had taken place prior
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C.R.P.(NPD).No.2502 of 2021
to the filing of the suit. The petitioner claimed to have purchased the
property on 06.06.2002. The plaintiff claimed specific performance under
the agreement of sale dated 03.05.2001. The sale in favour of the petitioner
is after the agreement, but, before the suit.
4. The course of action available to the agreement holder in such
cases was decided by the Hon'ble Supreme Court in Durga Prasad Vs.
Deep Chand reported in AIR 1954 SC 75, wherein, the Hon'ble Supreme
Court had held that it will be open to the plaintiff to implead the purchaser
after the agreement and seek execution of the sale deed by him. The
necessity for either setting aside the sale in favour of the subsequent
purchaser or seeking a declaration that subsequent purchase is invalid is not
warranted. In fact the Hon'ble Supreme Court upheld the practice of the
Madras High Court.
5. Moreover, I am of the considered opinion that the contentions
raised, even if they are correct, cannot be raised in application under Section
47 of the Code of Civil Procedure. The Hon'ble Supreme Court in
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C.R.P.(NPD).No.2502 of 2021
Dhurandhar Prasad Singh Vs. Jaiprakash University and others reported
in 2001 (6) SCC 534, had held that the scope of Section 47 of the Code of
Civil Procedure lies in a very microscopic examination hole and will not
encompass a ground that can be taken in an appeal against the judgment.
6. Hence, I do not find any merits in this Revision. The execution
Court was justified in rejecting the application under Section 47 of the Code
of Civil Procedure. The Revision therefore, fails and it is dismissed. No
costs. Consequently, the connected miscellaneous petition is closed.
23.11.2021
dsa
Index : No
Internet : Yes
Speaking order
To
The Sub-Judge, Nagapattinam.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2502 of 2021
R.SUBRAMANIAN, J.
dsa
C.R.P.(NPD).No.2502 of 2021
23.11.2021
https://www.mhc.tn.gov.in/judis
