Madras High Court
Kamala vs Malliga on 23 September, 2021
C.R.P (NPD).No.1180 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2021
CORAM
The Hon'ble Mr.Justice Krishnan Ramasamy
C.R.P (NPD)No.1180 of 2015
and
M.P.No.1 of 2015
1. Kamala
2. Gowri ..Revision Petitioners
vs.
1. Malliga
2. Ramalingam
Varadhammal (died)
3. Vanaja
..Respondents
PRAYER:
Civil Revision Petition filed under Section 115 of CPC against the
fair and decreetal order, dated 20.02.2015, made in E.A.No.4 of 2008, in
E.P.No.203 of 2003, in O.S.No.140 of 1998, on the file of the Sub Court,
Ranipet, Vellore District.
For Revision Petitioners : Mr.S.Mukunth
for M/s.Sarvabhaumann Associates
For Respondent-1 : Mr.P.Mani
Respondent-2 : Notice Served, no appearance
1/8
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C.R.P (NPD).No.1180 of 2015
ORDER
The challenge in this Civil Revision Petition is to the order
passed by the Executing Court, (Sub Court, Ranipet) in E.A.No.4 of 2008,
in E.P.No.203 of 2003, in O.S.No.140 of 1998.
2. The learned counsel appearing for the revision petitioners submits
that, one Mrs.Varadhammal was the mother of both the revision petitioners
and the second respondent herein. When the said Vardammal was alive, she
executed a Will in favour of her son/second respondent. Subsequently, the
said Will was revoked and the said Vardammal settled the property in
favour of the revision petitioners vide a settlement deed, dated 29.07.1997.
During the lifetime of Vardammal, the second respondent, without any
locus standi, enter into an agreement of sale on 09.01.1997 with the first
respondent. Based on the said agreement, the agreement holder filed a suit
for specific performance in O.S.No.140 of 1998 against the second
respondent/first defendant and Vardammal/second defendant. The said suit
was decreed, pursuant to which, execution proceedings were initiated
against the judgment debtors, and since the second defendant-Vardhammal
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C.R.P (NPD).No.1180 of 2015
passed away, the revision petitioners were impleaded as parties to the
execution proceedings.
2.1 The main contention of the learned counsel for the revision
petitioners is that, the second respondent, during the lifetime of his mother
Vardhammal, without any authority, entered into agreement of sale, by
concealing the vital fact that her mother/second defendant had executed a
settlement deed in favour of the revision petitioners, whereby, the revision
petitioners have right/title/interest over the property covered in O.S.No.140
of 1998 and in order to prove the same, the revision petitioners filed a
comprehensive suit in O.S.No.95 of 2014, which was re-numbered as
O.S.No.6 of 2015 and the same is pending on the file of the Additional
District Court, Ranipet. Therefore, the learned counsel submits that the
revision petitioners' right requires to be adjudicated in O.S.No.6 of 2015,
and since the decree in O.S.No.140 of 1998 was obtained behind the back of
the Court, as the second respondent concealed the fact of execution of the
settlement deed in favour of the revision petitioners, in respect of the
property in O.S.No.140 of 1998, the decree passed in O.S.No.140 of 1998
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C.R.P (NPD).No.1180 of 2015
has to be declared as nullity and the consequential order passed in
E.P.No.203 of 2003 has to be set aside.
3. The learned counsel for the first respondent submits that, as on
date, the revision petitioners have not obtained any decree in their favour, in
O.S.No.6 of 1995 and therefore, there is no impediment for the first
respondent to take possession of the property. In the event, if any decree is
passed, in O.S.No.6 of 2015, the revision petitioners can very well take
steps for execution of the decree in accordance with law.
4. Heard the learned counsel for the revision petitioners and the first
respondent and perused the materials available on record.
5. The Suit in O.S.No.140 of 1998 was filed by the first respondent-
agreement holder for the relief of specific performance, wherein, the
revision petitioners' mother was impleaded as second defendant. After the
decree was passed, the second defendant passed away. Based on the decree
passed in the suit, the respondent-decree holder initiated execution
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C.R.P (NPD).No.1180 of 2015
proceedings in E.P.No.203 of 2003, wherein, the revision petitioners, being
the legal heirs of the deceased second defendant were impleaded as parties.
Objecting to the execution of the decree obtained in O.S.No.140 of 1998,
the revision petitioners wrongly filed application under Section 47 CPC in
E.P.No.99 of 2010. Hence, the same was dismissed and there was no
challenge to the same. Subsequently, the revision petitioners filed E.P.No.4
of 2008, against the execution of the decree. The said E.P.No.4 of 2008 was
also dismissed. Now, the challenge in this Revision Petition is against the
said dismissal of E.A.No.4 of 2008, as by virtue of the order passed
thereunder, possession of the suit property was handedover to the decree
holder.
5.1 This Court is unable to accept the contentions of the learned
counsel for the revision petitioners. The learned counsel himself fairly
admitted that the rights of the revision petitioners has to be adjudicated in
the suit filed by them, viz., O.S.No.6 of 2015. Thus, as longs as the
revision petitioner's right over the property in question has not been
adjudicated in O.S.No.6 of 2015 as on the date of the execution of the
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C.R.P (NPD).No.1180 of 2015
decree in O.S.No.140 of 1998, certainly, they have no right to raise
objections for execution of the decree in O.S.No.140 of 1998. As rightly
contended by the learned counsel for the first respondent, as of now, the
revision petitioners have not obtained any decree in their favour, in
O.S.No.6 of 2015, and therefore, there is no impediment for the first
respondent to take possession of the property. Therefore, this Court is of
the view that no order is required to be passed in this Civil Revision
Petition. In the event, any decree is passed in favour of the revision
petitioners in O.S.No.6 of 2015, it is open to the revision petitioners to take
action in accordance with law.
6. With the above observations, this Civil Revision Petition
stands closed. No costs. Consequently, connected Miscellaneous Petition
is closed.
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Index: Yes/No
Speaking/Non-speaking
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C.R.P (NPD).No.1180 of 2015
To
1.The Sub Court, Ranipet, Vellore District.
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C.R.P (NPD).No.1180 of 2015
Krishnan Ramasamy, J.,
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C.R.P (NPD)No.1180 of 2015
23.09.2021
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