Madras High Court
M.Lakshmipathi (Died) vs Chaganlal on 21 October, 2021
C.R.P.(NPD).No.2681 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD).No.2681 of 2017
and
C.M.P.No.12749 of 2017
1.M.Lakshmipathi (died)
2.L.Nalani
3.P.Munirathinam
4.L.Deepak .. Petitioners
(Petitioners 2 to 4 brought on record as LRs of the
deceased sole petitioner viz., M.Lakshmipathi, vide
order of this Court dated 29.03.2021 made in
C.M.P.Nos.13309, 13311 & 13312 of 2019 in
C.R.P.(NPD).No.2681 of 2017)
Vs.
1.Chaganlal
2.Ashok Kumar
3.Pushpa Bai
4.Bharat Kumar
5.Ramesh Kumar .. Respondents
1/9
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.2681 of 2017
Prayer: This Civil Revision Petition is filed under Article 115 of the
Constitution of India, to set aside the judgment and decree dated 14.07.2017
passed by the IX Assistant Judge, City Civil Court, Chennai, in E.A.No.208
of 2017 in E.A.No.1232 of 2014 in E.P.No.1559 of 2014 in O.S.No.5291 of
2001.
For Petitioners : Mr.P.Dinesh Kumar
For Respondents : Ms.K.Lekkha
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed to set aside the judgment and
decree dated 14.07.2017 passed by the IX Assistant Judge, City Civil Court,
Chennai, in E.A.No.208 of 2017 in E.A.No.1232 of 2014 in E.P.No.1559 of
2014 in O.S.No.5291 of 2001.
2.The 1st petitioner is the defendant in O.S.No.5291 of 2001 and
respondent / Judgment Debtor in E.P.No.1559 of 2014 and petitioner in
E.A.No.1232 of 2014 and E.A.No.208 of 2017. The respondents filed the said
suit against the 1st petitioner for possession of the suit property. The said suit
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C.R.P.(NPD).No.2681 of 2017
was decreed by the judgment and decree dated 31.08.2006. The 1 st petitioner
filed First Appeal in A.S.No.816 of 2006. The said First Appeal was
dismissed by the judgment and decree dated 20.07.2011 confirming the
decree passed in O.S.No.5291 of 2001. The appeal filed before the Hon'ble
Apex Court was also dismissed by the judgment dated 21.02.2012. The
respondents earlier, while the First Appeal was pending, filed E.P.No.719 of
2007. The 1st petitioner filed E.A.No.2690 of 2007 alleging that decree is not
executable. The said E.A. was allowed on 19.06.2009. C.R.P.(NPD).No.1853
of 2009 and Review Application No.146 of 2006 in C.R.P.(NPD).No.1853 of
2009 filed by the respondents were dismissed by this Court by the order dated
09.09.2009 and 23.07.2010 respectively. Subsequently, after judgment and
decree in First Appeal in A.S.No.816 of 2006, the respondents filed
E.P.No.1559 of 2014 for taking possession. In the said E.P., the 1 st petitioner
filed E.A.No.1232 of 2014 under Section 47 of C.P.C., alleging that the
decree is not executable. The respondents filed counter and the 1st petitioner
filed reply in the said E.A. In E.A.No.1232 of 2014, the 1 st petitioner filed
two applications for re-opening and recalling R.W.1. The said applications
were allowed. While pending recall R.W.1, the 1st petitioner has filed the
present E.A.No.208 of 2017 under Section 151 of C.P.C., to permit the 1st
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C.R.P.(NPD).No.2681 of 2017
petitioner to file additional grounds in E.A.No.1232 of 2014 in E.P.No.1559
of 2014 to allow the Section 47 application and dismiss the E.P. as
inexecutable. The respondents filed counter affidavit and opposed the said
application.
3.The learned Judge considering the averments in the affidavit and
counter affidavit, dismissed the E.A., holding that the 1st petitioner is
disputing his own title when he has not taken such a stand in the suit filed by
the respondents and appeal filed by him.
4.Against the said order dated 14.07.2017 made in E.A.No.208 of
2017, the present Civil Revision Petition has been filed.
5.Pending Civil Revision Petition, the sole petitioner died. The
petitioners 2 to 4 were brought on record as legal heirs of the deceased sole
petitioner by the order of this Court dated 29.03.2021 made in
C.M.P.Nos.13309, 13311 & 13312 of 2019 in C.R.P.(NPD).No.2681 of 2017
6.The learned counsel appearing for the petitioners submitted that the
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C.R.P.(NPD).No.2681 of 2017
learned Judge failed to see that in an application filed under Section 47 of
C.P.C., the Execution Court has to decide the issues relating to execution,
discharge and satisfaction of decree and the learned Judge ought to have
allowed the present petition to raise additional grounds in the E.A. The
learned Judge erred in holding that 1st petitioner has not disputed his title in
earlier proceedings and is estopped in raising such a plea now. The estoppel
will be with regard to facts only and not for law. The property originally
belonged to one Nellore Gopal Chetty, who, by the Will dated 11.08.1919
bequeathed the property to his wife, Nellore Kuppammal. Only based on the
said Will, she executed the settlement deed in favour of the 1st petitioner. The
property is in Chennai. The Will was not probated. Hence, the Nellore
Kuppammal did not get any title based on unprobated Will and settlement in
favour of the 1st petitioner is void. The Execution Court erred in observing
that since judgment passed in the Appeal in A.S.No.816 of 2006 is confirmed
by the Hon'ble Apex Court, the petitioner has no right to dispute the validity
of the decree. The learned Judge failed to consider that the present petition is
filed with regard to ownership of the property and executability of the decree.
The respondents, without impleading other persons who have interest in the
suit property, filed the suit and decree obtained is invalid. In view of the
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C.R.P.(NPD).No.2681 of 2017
above circumstances, the additional grounds are necessary to bring forth the
true facts and only if the additional grounds are raised, the petitioner will be
in a position to let in evidence and prayed for allowing the Civil Revision
Petition.
7.The learned counsel appearing for the respondents submitted that the
learned Judge has considered all the materials placed before him in proper
perspective and exercising his jurisdiction conferred on him, has dismissed
the E.A.No.208 of 2017 by giving cogent and valid reason. There is no error
in the said order of the learned Judge warranting interference by this Court
and prayed for dismissal of the Civil Revision Petition.
8.Heard the learned counsel appearing for the petitioners as well as the
learned counsel appearing for the respondents and perused the entire
materials on record.
9.From the materials available on record, it is seen that the respondents
have filed suit in O.S.No.5291 of 2001 against the 1st petitioner for
possession of the suit property. The 1st petitioner contested the suit. The suit
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C.R.P.(NPD).No.2681 of 2017
was decreed and First Appeal in A.S.No.816 of 2006 filed by the 1st petitioner
was dismissed confirming the decree passed in O.S.No.5291 of 2001. The
appeal filed by the 1st petitioner before the Hon'ble Apex Court was also
dismissed. Based on the decree, the respondents have filed E.P.No.1559 of
2014. In the E.P., the petitioner filed E.A.No.1232 of 2014 under Section 47
of C.P.C., alleging that the decree is not executable. In the said E.A., the
respondents filed counter affidavit. The 1st petitioner also filed reply and also
filed two applications for re-opening and recalling R.W.1. Both the
applications were allowed by the Execution Court. At that stage, the 1 st
petitioner filed the present E.A.No.208 of 2017, seeking permission to raise
additional grounds.
10.From the affidavit filed by the 1st petitioner in support of the present
E.A., it is seen that the 1st petitioner is raising a new ground that 1st petitioner
himself has no title over the suit property and sale deed executed by him in
favour of the respondents is invalid. No such ground was raised by him in the
said appeal filed before this Court and also in the appeal filed before the
Hon'ble Apex Court. This Court and the Hon'ble Apex Court have held that
the respondents are entitled to possession of the suit property. The learned
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C.R.P.(NPD).No.2681 of 2017
Judge has held that the 1st petitioner has not disputed his title up to S.L.P.
before the Hon'ble Apex Court and therefore, the 1st petitioner is not entitled
to raise additional grounds disputing his own title. The reason given by the
learned Judge for dismissing the E.A. is valid and legal. There is no error or
irregularity in the said order of the learned Judge warranting interference by
this Court.
11.For the above reason, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
21.10.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned IX Assistant Judge,
City Civil Court,
Chennai
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C.R.P.(NPD).No.2681 of 2017
V.M.VELUMANI, J.
krk
C.R.P.(NPD).No.2681 of 2017
21.10.2021
https://www.mhc.tn.gov.in/judis
