Madras High Court
K.Shanmugam vs M.Shanmugam on 30 November, 2021
C.M.S.A.No.38 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.S.A.No.38 of 2011
and
M.P.No.1 of 2011
1.K.Shanmugam
2.Periyasamy .. Appellants
Vs.
1.M.Shanmugam
2.Pachamuthu @ Muthusamy
3.Selvaraj
4.Lakshmi @ Kannagi
5.Pachiammal
6.Sampooranam .. Respondents
Prayer: This Civil Miscellaneous Second Appeal is filed under Order XXI
Rule 58 (5) of the Code of Civil Procedure r/w Section 100 of the Code of
Civil Procedure, against the fair and decretal order dated 08.04.2010 in
C.M.A.No.3 of 2005 reversing the Fair and Decreetal Order of the Learned
Principal District Munsif, Bhavani dated 05.04.2004 in E.A.No.335 of 2002
in E.P.No.22 of 1999 in O.S.No.733 of 1989.
1/24
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For Appellants : Mr.K.Sivasubramanian
for Mr.T.M.Hariharan
For R1 : Mr.T.Murugamanickam
Senior Counsel
for Ms.Zeenath Begum
For RR 2, 5 & 6 : Mr.C.Harish
for Mr.N.Manokaran
For RR 3 & 4 : No appearance
JUDGMENT
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decretal order
dated 08.04.2010 in C.M.A.No.3 of 2005 reversing the Fair and Decreetal
Order of the Learned Principal District Munsif, Bhavani dated 05.04.2004 in
E.A.No.335 of 2002 in E.P.No.22 of 1999 in O.S.No.733 of 1989.
2.The appellants are third parties in O.S.No.733 of 1989 and
petitioners in E.A.No.335 of 2002. The 1st respondent filed the said suit
against his Father P.Mangalagiri, who is 1st defendant and respondents 2 to 4
herein as defendants 2 to 4 in the suit. The first defendant is Father of
respondents 1 to 3. The 4th respondent is purchaser of the property from 1st
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defendant.
3.According to 1st respondent, the petition property is purchased from
and out of nucleus of joint family property in the name of 1st defendant. In
view of the same, the respondents 1 to 3 and 1st defendant have 1/4th share
each in the petition property. The 1st defendant and respondents 2 & 3 filed
written statement on 29.10.1991 stating that petition property is self acquired
property of 1st defendant and it is not a joint family property. The 4 th
respondent, who is the purchaser from the 1 st defendant adopted the written
statement filed by the 1st defendant and respondents 2 & 3. After filing written
statement, the 1st defendant and respondents 2 to 4 did not contest the suit
and they were set exparte and exparte decree was passed on 30.11.1993.
Subsequently, in I.A.No.2440 of 1995 filed by the 1 st respondent, a final
decree was passed on 12.10.1998 and allotted 'D' portion of the petition
property mentioned in Advocate Commissioner's report to the 1st respondent.
4.The 1st respondent filed E.P.No.22 of 1999 for delivery of possession
of petition property. At that stage, the petitioners filed the present E.A.No.335
of 2002 under Section 47 and Order XXI Rule 58 and Section 151 of the Civil
Procedure Code to adjudicate upon the question of title arises in the E.P.
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According to petitioners, the 1st defendant by the sale deed dated 03.05.1989
sold the petition property to 4th respondent, stating that it is his self acquired
property. From the date of purchase, the 4th respondent was in possession and
enjoyment of the petition property, got her name mutated in Revenue Records
and was paying tax to the Government. When the 1st defendant sold his
property to 4th respondent, there was no suit pending against the 1st defendant
or against the respondents 2 & 3 and there is no encumbrance in the petition
property. The petitioners have purchased the petition property from the 4th
respondent by the deed of sale dated 24.01.2002 for valuable consideration
and they are in possession and enjoyment of the petition property. Only when
Bailiff of the Court came to the petition property on 24.07.2002, the
petitioners came to know about the final decree passed in I.A.No.2440 of
1995. The petitioners were kept in dark about the proceedings and they came
to know about the suit proceedings only when Court Bailiff came to the
petition property on 24.07.2002. The delivery of possession sought for by the
1st respondent is the property purchased by the petitioners. The question of
ownership is involved in the case and ownership has to be determined by the
Executing Court. The petitioners have filed E.A. to adjudicate upon the claims
and objections by the petitioners in accordance with provisions of Code of
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Civil Procedure and prayed for allowing E.A.
5.The 1st respondent filed counter affidavit and denied all the
allegations made by the petitioners. The 1st respondent has stated that the
petitioners have purchased the petition property pending E.P. on 24.01.2002.
The final decree was passed on 12.10.1998 against the 1st defendant and
respondents 2 to 4. The 4th respondent has no right to sell the petition property
to the petitioners after passing of final decree in favour of 1st respondent. The
4th respondent was party in all the proceedings in the suit. Preliminary decree
and final decree passed in the suit will bind on the 4th respondent. Since
decree is passed against the 4th respondent also, the same is binding on the
petitioners. The petitioners cannot rely on the Revenue Records to prove their
title. The question of title does not arise. Already in the suit in O.S.No.733 of
1989, the said issue was decided and decreed in favour of the 1 st respondent
by the Trial Court. In the E.A. filed under Section 47 and Order XXI Rule 58
of the Code of Civil Procedure, the petitioners cannot question the decree
passed in favour of the 1st respondent and prayed for dismissal of E.A.
6.The 1st defendant and respondents 2 & 3 remained exparte before the
Execution Court. The 4th respondent filed counter affidavit stating that she has
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sold the petition property to the petitioners on 24.01.2002 and petitioners are
in possession and enjoyment of the petition property. The Revenue Records
are in the name of the petitioners.
7.Before the learned Judge,the 1st petitioner examined himself as P.W.1
and marked 8 documents as Exs.P1 to P8. The 1st respondent examined
himself as R.W.1 and marked 9 documents as Exs.R1 to R9.
8.The learned Judge allowed the E.A. holding that -
(i) The 1st respondent has not proved that petition property was
ancestral property.
(ii) The 4th respondent purchased the petition property 7 months prior
to filing of O.S.No.733 of 1989 and 1st respondent did not seek to set aside
the said sale deed.
(iii) The 1st respondent filed suit suppressing the real facts.
(iv) The petition property belongs to 4th respondent and petitioners have
become owner of the property having purchased from 4th respondent.
and also held that E.P. is not executable.
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9.Against the said order dated 05.04.2004 made in E.A.No.335 of
2010, the 1st respondent filed C.M.A.No.3 of 2005 on the file of the Sub
Court, Bhavani, Erode.
10.Pending C.M.A.No.3 of 2005, the 1st defendant died. The
respondents 1 to 3, who are the sons of 1 st defendant were already on record
and respondents 5 & 6, who are the daughters of 1st defendant were brought
on record as legal heirs of the 1st defendant.
11.The learned First Appellate Judge framed necessary points for
consideration. After considering entire materials, order in E.A and arguments
of learned counsel for appellant and respondents, the learned First Appellate
Judge partly allowed the appeal and modified the order passed in E.A.,
holding that 1st respondent is entitled to 1/4th share in the petition property.
12.Against the said judgment and decree dated 08.04.2010 made in
C.M.A.No.3 of 2005, the present appeal is filed.
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13.The learned counsel appearing for the appellants contended that the
First Appellate Judge erred in holding that decree obtained by the 1st
respondent is against the 4th respondent also and no appeal is filed against the
said decree and Executing Court is bound by the decree and cannot go beyond
the decree. The First Appellate Judge erred in holding that appellants cannot
contend against the decree. The finding of the First Appellate Judge that
without challenging the preliminary decree and final decree, the E.A. filed
under Section 47 and Order XXI Rule 58 of the Code of Civil Procedure
cannot be entertained is not correct. The First Appellate Judge failed to
consider that a decree that is not in conformity with law or which is in
violation of mandatory provisions of law or which is barred by statutory
provisions cannot be executed and such questions can be agitated under
Section 47 of the Code of Civil Procedure. The 1 st respondent admitted that 1st
defendant / Mangalagiri is the Kartha of family and any sale by Kartha of
family is binding on all the members of the family. The decree obtained by the
1st respondent without setting aside the same is not valid and is not
executable. The First Appellate Judge failed to see that 1st respondent played
fraud and obtained the decree, Section 44 of the Evidence Act is attracted and
that the Executing Court can definitely hold that decree is illegal and
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unexecutable. The First Appellate Judge erred in holding that E.A. filed by the
appellants under Section 47 and Order XXI Rule 58 and Section 151 of the
Code of Civil Procedure is not maintainable in view of the dismissal of
O.S.No.195 of 1999 filed by the 1st defendant to set aside the preliminary
decree dated 30.11.1993 and final decree dated 12.10.1998. The learned
counsel appearing for the appellants made further submissions on merits with
regard to preliminary decree and final decree passed by the Court and prayed
for allowing the appeal.
14.The learned Senior Counsel appearing for the 1st respondent
contended that Executing Court cannot go beyond the decree and in an
application under Section 47, the Executing Court cannot consider the matter
beyond the decree. The Executing Court failed to consider the scope of
Section 47 of the Code of Civil Procedure and decided the E.A. filed by the
appellants beyond the scope of Section 47. The 1st defendant filed application
to set aside the exparte preliminary decree and the same was dismissed. The
petition filed by the 1st defendant against the said order was also dismissed by
this Court. Further, the 1st defendant filed O.S.No.195 of 1999 to set aside the
preliminary decree and final decree obtained by the 1 st respondent. The said
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suit was dismissed. The vendor of the appellants, the 4 th respondent herein
was a party to the present suit in O.S.No.733 of 1989. She has not filed any
application to set aside the exparte preliminary decree or appeal challenging
the preliminary decree and final decree. The decree passed in O.S.No.733 of
1989 is binding on the 4th respondent. After passing the final decree dated
12.10.1998 and during pendency of E.P.R.No.22 of 1999, the 4th respondent
sold the petition property to the appellants. Hence, the decree obtained by the
1st respondent against the 4th respondent is binding on the appellants also. The
Executing Court failed to consider that even if decree is exparte decree, the
same cannot be questioned in the E.P. The Executing Court failed to consider
the oral and documentary evidence let in by the 1st respondent. E.A.No.335 of
2002 filed by the appellants under Section 47 and Order XXI Rule 58 and
Section 151 of the Code of Civil Procedure is not maintainable. The appellants
have no right to file the application under Section 47 and Order XXI Rule 58
and Section 151 of the Code of Civil Procedure. An application under Section
47 and Order XXI Rule 58 and Section 151 of the Code of Civil Procedure
can be filed only by a party to the suit or a representative of the party to the
suit. The appellants are neither party to the suit nor representative of the 4th
respondent, who is a party to the suit. The appellants have filed the said
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application on their own right claiming ownership to the petition property. As
per the provisions of the Code of Civil Procedure, the appellants are not
representative of the party to the suit. He further submitted that the First
Appellate Judge has considered the scope of Section 47 as well as power of
Executing Court, appreciating all the materials placed before it including the
order of Executing Court in proper perspective and allowed the appeal only in
respect of 1/4th share of the 1st respondent as per decree and the same is valid
and legal. In support of his contention, the learned Senior Counsel relied on
the following judgment and prayed for dismissal of the appeal.
(i)Judgment of this Court reported in 2000 (III) CTC 362, [Sri
Nallalagu Polytechnic Managing Committee, Kamaraj Education and
Research Foundation Trust, Madras rep. by its Secretary Vs. D.Sivakumar],
wherein this Court at paragraph No.54 held as follows:
“ .... 54. But an application under Section
47(1) C.P.C., unlike by a third party as
contemplated under Order 21 Rule 99, could be
made only by the parties to the suit or their
representative connecting the decree passed or
relating to the execution, discharge or
satisfaction of the decree and it shall be
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determined by the Court executing the decree.
Section 47(3) would contemplate that the
question whether any person is a representative
of a party or not shall be determined by the
Court. Apart from these, explanations 1 and 2
would further contemplate who are all the right
parties to the suit or proceeding.”
15.The learned counsel appearing for the respondents 2, 5 & 6 made
his submissions in support of the judgment passed in C.M.A.No.3 of 2005
and prayed for dismissal of the appeal.
16.Though notice has been served on the respondents 3 & 4 and their
names are printed in the cause list, there is no representation for them, either
in person or through counsel.
17.Heard the learned counsel appearing for the appellants as well as the
learned Senior Counsel appearing for the 1st respondent and the learned
counsel appearing for the respondents 2, 5 & 6 and perused the entire
materials on record.
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18.On 22.11.2021, this Court framed the following substantial
questions of law:
(i) Whether appellants have the right to file application under Section
47 of the Code of Civil Procedure and whether E.A.No.335 of 2002 filed by
the appellants is maintainable?
(ii) Whether the question of executability of the decree in the suit
cannot be gone into by Executing Court?
(iii) Whether the Executing Court re-appraise the pleadings and
evidence in the suit while deciding the E.A. filed by the appellants under
Section 47 of the Code of Civil Procedure?
Substantial Questions of Law – 1 to 3:
19.From the materials on record, it is seen that it is the contention of
the appellants that 4th respondent purchased the petition property on
03.05.1989 from the 1st defendant. At that time, no proceedings were pending
and purchase by 4th respondent is valid. The 1st respondent subsequent to the
sale by the 1st defendant, filed suit in O.S.No.733 of 1989 for partition,
impleading the 4th respondent as 4th defendant in the suit. Knowing fully well
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the sale in favour of the 4th respondent before filing of the suit, the 1st
respondent did not seek to set aside the sale deed dated 27.05.1989 executed
in favour of the 4th respondent. In view of the same, the preliminary and final
decrees obtained by the 1st respondent are invalid. The 1st respondent obtained
the said decrees by suppressing the material facts and playing fraud on the
Court. The appellants are bonafide purchaser for valuable consideration
without knowledge of decrees obtained by the 1st respondent. On these
grounds, the appellants submitted that E.P. is unexecutable and prayed for
dismissal of E.P. The appellants have filed E.A.No.335 of 2002 in E.P.No.22
of 1999 under Section 47 and Order XXI Rule 58 and Section 151 of the
Code of Civil Procedure.
20.First it has to be decided whether the appellants can file the said
application. Section 47 of the Code of Civil Procedure is extracted herein for
easy reference.
“Section 47 of the Code of Civil Procedure:
47. Questions to be determined by the Court executing
decree:-
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(1) All questions arising between the parties to the suit in
which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree,
shall be determined by the Court executing the decree and not
by a separate suit.
(3) Where a question arises as to whether any person is
or is not the representative of a party, such question shall, for
the purposes of this section, be determined by the Court.
Explanation I: For the purposes of this section, a plaintiff whose
suit has been dismissed and a defendant against whom a suit
has been dismissed are parties to the suit.
Explanation II: (a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall be
deemed to be a party to the suit in which the decree is passed;
and
(b) all questions relating to the delivery of
possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the
meaning of this section.”
21.As per Section 47 of the Code of Civil Procedure, a party to the suit
or a representative of the party to the suit can file application under Section 47
of the Code of Civil Procedure. The appellants are not party to the suit. In
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explanation I and II to Section 47, it has been mentioned who are all parties in
the suit and who can file application under Section 47 of the Code of Civil
Procedure. Admittedly, the appellants are not defendants in the suit and they
are not purchasers of property in the Court auction in execution of decree. The
appellants have not filed application as representative of 4 th respondent. On
the other hand, they have filed the said application claiming right on their own
and as owners of petition property. They have stated that they are third parties
to the suit. In view of the same, the appellants have no right to file
E.A.No.335 of 2002 under Section 47 and Order XXI Rule 58 and Section
151 of the Code of Civil Procedure. The judgment relied on by the learned
Senior Counsel appearing for 1st respondent to substantiate his contention that
appellants are not representative of the party to the suit is squarely applicable
to the facts of the present case. The Executing Court without properly
considering scope of Section 47 of the Code of Civil Procedure, allowed
E.A.No.335 of 2002. The Executing Court ought to have dismissed the said
E.A. as not maintainable.
22.It is the contention of the appellants that the 1st defendant was
absolute owner of the petition property and petition property is not a joint
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family property. In any event, the 1st defendant is Kartha of joint family and
sale by 1st defendant for the benefit of members of the family is binding on
them including the 1st respondent. The 4th respondent has purchased the
petition property before any Civil Proceedings were initiated and without
setting aside the sale deed dated 03.05.1989 executed in favour of the 4th
respondent, the decree obtained by the 1st respondent is invalid and fraudulent
decree. These contentions cannot be considered and decided in execution
proceedings when the said application was filed by a third party to the suit. It
is seen from the materials on record that the 4th respondent adopted the
written statement filed by the 1st defendant and respondents 2 & 3. After filing
written statement in the suit, the 4th respondent did not contest the suit. An
exparte preliminary decree was passed on 30.11.1993. The 4 th respondent did
not file any application to set aside the exparte preliminary decree or filed any
appeal challenging the same. Only the 1st defendant filed application to set
aside the exparte decree and the same was dismissed. Civil Revision Petition
filed by the 1st defendant was also dismissed by this Court. Therefore,
preliminary decree obtained by the 1st respondent has become final.
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23.The 1st respondent filed I.A.No.2440 of 1995 for passing of final
decree. After contest, the said I.A. was allowed on 12.10.1998 and 'D' portion
in Advocate Commissioner's report was allotted to the 1 st respondent. The said
final decree has become final as 4th respondent or other defendants have not
challenged the same. The 1st defendant without filing any appeal challenging
the decree obtained by the 1st respondent, filed suit in O.S.No.195 of 1999 to
set aside the decree passed in O.S.No.733 of 1989 filed by the 1 st respondent.
The said suit was dismissed and judgment and decree in present suit in
O.S.No.733 of 1989 has become final.
24.The 1st respondent filed E.P.No.22 of 1999 for delivery of
possession as per the final decree. The 1st respondent filed E.P. for delivery of
his 1/4th share in the petition property as mentioned in the Advocate
Commissioner's report and final decree. After two years of filing of E.P. and
during pendency of E.P., the 4th respondent sold the petition property to the
appellants by sale deed dated 24.01.2002. According to the appellants, only
when Court Bailiff came to the petition property on 24.07.2002, they came to
know about the litigations and filed E.A.No.335 of 2002 for dismissal of E.P.
The Executing Court while considering the said application, exceeded its
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power as E.P. Court and without jurisdiction, considered all the materials as
though E.P. Court as First Appellate Court and held that E.P. is unexecutable.
A reading of the order in E.A.No.335 of 2002 in E.P.No.22 of 1999 shows
that E.P. Court has re-appraised the entire materials and held that decrees
obtained by the 1st respondent will not bind the 4th respondent and in view of
the same, decrees obtained by the 1st respondent is not binding on the
appellants. The E.P. Court has held that 1st respondent has failed to prove that
petition property is joint family property and it is not self acquired property of
1st defendant. Further, E.P. Court held that decree passed without setting
aside the sale deed in favour of 4th respondent is not valid.
25.It is well settled that Executing Court cannot go beyond the decree
and has to execute the decree as passed by the competent Civil Court. As per
Section 47 of the Code of Civil Procedure, Executing Court can hold that
decree is not executable only when the decree was passed without any
jurisdiction and decree is void ab initio or decree is exfacie nullity. To come
to this conclusion, the Court is precluded from making any indepth scrutiny
with regard to plaintiff's claim made in the plaint and also the defence set up
by judgment debtors. The judgment of the Trial Court could not have been
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reopened and correctness thereof could not be put to question.
26.In the present case, the Executing Court has scrutinized the
averments in the plaint and also the contention of the defendant in the written
statement. The Executing Court failed to see that defendants did not contest
the suit and did not prove their averments as contained in the written
statement. The Executing Court decided the issue exceeding its jurisdiction,
power and without properly considering scope of Section 47 of the Code of
Civil Procedure. Even when O.S.No.195 of 1999 filed by the 1st defendant to
set aside the preliminary decree and final decree obtained by the 1 st
respondent was dismissed, the Executing Court assumed and presumed that
1st defendant has time to file appeal. Considering the scope of Section 47 of
the Code of Civil Procedure and power of Executing Court while executing the
decree passed by a competent Civil Court having jurisdiction, the order of
Executing Court in application filed by the appellants is erroneous, irregular,
invalid and illegal.
27.In view of the above materials:-
(a) The first substantial question of law is held that appellants have no
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right to file an application under Section 47 of the Code of Civil Procedure.
(b) The second substantial question of law is concerned, the Executing
Court can go into question of executability of decree passed by competent
Civil Court within the scope of Section 47 of the Code of Civil Procedure and
can decide only whether the decree passed by the competent Civil Court,
whether it is nullity or void ab initio and without jurisdiction.
(c) The third substantial question of law is concerned, the Executing
Court without power or jurisdiction has re-appraised the matter, pleadings
and evidence in the suit while deciding the E.A., as though it is the First
Appellate Court instead of having in mind that it is only an Executing Court.
By this process, the Executing Court went beyond the decree. An application
under Order XXI Rule 58 of the Code of Civil Procedure is maintainable
when the property mentioned in the E.P. was attached and applicant seeking
to raise attachment. In the present case, the E.P. is not for attachment and
sale. E.P. is for delivery of 1/4th share of the 1st respondent as per the final
decree. Therefore, Order XXI Rule 58 of the Code of Civil Procedure is not
applicable to the facts of the present E.P. and application filed by the
appellants is not maintainable.
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28.The learned First Appellate Judge has properly dealt with scope of
Section 47 of the Code of Civil Procedure and power of Executing Court in
deciding the application filed under Section 47 and Order XXI Rule 58 of the
Code of Civil Procedure and has rightly partly allowed the appeal with regard
to 1/4th share of the 1st respondent. Therefore, all the three substantial
questions of law are answered against the appellants.
29.For the above reasons, this Civil Miscellaneous Second Appeal is
dismissed. Consequently, the connected Miscellaneous Petition is closed. No
costs.
30.11.2021
krk
Index : Yes
Internet : Yes
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C.M.S.A.No.38 of 2011
To
The learned Principal District Munsif,
Bhavani.
V.M.VELUMANI, J.
krk
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C.M.S.A.No.38 of 2011
C.M.S.A.No.38 of 2011
30.11.2021
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