Madras High Court
C.Dhanalakshmi vs K.Viswanathan on 8 August, 2022
Rev.Appl.No.25 of 2022 &
C.R.P.No.1351 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
Rev.Appl.No.25 of 2022
and
C.R.P.No.1351 of 2022
and
C.M.P.No.7123 of 2022
Rev.Appl.No.25 of 2022
1.C.Dhanalakshmi
2.Malathi
3.N.Udhayasankar ...Petitioners
-Vs-
1.K.Viswanathan
2.K.S.Subramaniam ...Respondents
Prayer: Review Application filed under Order 47 Rule 1 r/w 114 of Code of
Civil Procedure, 1908, to review the judgment and decree dated 31.03.2021
passed in C.M.A.No.22 of 2021 on the file of this Court.
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Rev.Appl.No.25 of 2022 &
C.R.P.No.1351 of 2022
For Petitioner : Mr.M.Nandha Kumar
for M/s.Eswar, Kumar and Rao
For Respondents : Mr.N.Manokaran
C.R.P.No.1351 of 2022
1.C.Dhanalakshmi
2.Malathi
3.N.Udhayasankar ...Petitioners
-Vs-
1.K.K.Seerangan
2.K.Viswanathan
3.K.S.Subramaniam
4.Garnishee
The 3rd Additional District Judge,
Gobichettipalayam. ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India praying to strike off the petition in E.P.No.44 of 2021 in O.S.No.44 of
2018 on the file of the III Additional District Judge, Erode at
Gobichettipalayam.
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Rev.Appl.No.25 of 2022 &
C.R.P.No.1351 of 2022
For Petitioner : Mr.M.Nandha Kumar
for M/s.Eswar, Kumar and Rao
For R1 to R3 : Mr.N.Manokaran
For R4 : No Appearance
COMMON ORDER
The facts in nutshell to be considered are that the respondents
instituted a suit for specific performance and an alternate remedy is also
sought to grant decree against the petitioners/defendants to refund the
advance amount with interest at Rs.1,47,18,750/- and with subsequent
interest at 9% on Rs.1,25,00,000/- from the date of the suit till the date of
payment and create a statutory charge over the suit property as security for
proper repayment of the decree amount.
2. An ex-parte decree was passed in O.S.No.44 of 2018 on
08.01.2020. The ex-parte decree reveals that the defendants entered
appearance through their Counsel Mr.C.Devaraj on 18.08.2018 and the suit
was posted for filing written statement. On 11.07.2019, the defendants 1
and 2 were called absent and the third defendant was present. Written
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C.R.P.No.1351 of 2022
statement was not filed and the defendants were set ex-parte. Upon hearing
the plaintiffs' side and on perusal of the records, the suit was decreed with
costs in respect of the relief of specific performance and a direction was
issued to execute the Sale Deed in favour of the plaintiffs.
3. Subsequently, an Interlocutory Application in I.A.No.2 of 2020 was
filed under Order 9 Rule 13 of the Code of Civil Procedure and under
Section 151 of the Code of Civil Procedure and the Trial Court dismissed the
said Interlocutory Application mainly on the ground that the plaintiffs and
the defendants through their Counsel filed a Memo before the Trial Court on
02.11.2018, in which, it is found that the defendants agreed to settle the
matter by way of returning the amount to the plaintiffs, for which the
document No.2281/2016 has to be returned.
4. Based on the request made, the Trial Court permitted to return the
said document, namely the Sale Agreement, on 02.11.2018. Another memo
was filed before the Trial Court on 21.12.2018 by the learned Counsel for
the plaintiffs, stating that till then, the defendants are not evincing any
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Rev.Appl.No.25 of 2022 &
C.R.P.No.1351 of 2022
interest in executing the terms of compromise. Thus, the petition was
resubmitted.
5. In contradiction to the above statements, the defendants in their
written statement has denied the transaction by the plaintiffs with late
Mr.P.C.Nagarajan. Even after the ex-parte decree on 20.01.2020, for
remittance of Rs.35 lakhs, a challan was ordered on 21.01.2020. The
amount was remitted and the remittance receipt was filed before the Trial
Court on 28.01.2020. Under those circumstances, considering the
contradictory stand taken by the defendants with reference to their
admission of liability, the Trial Court dismissed the petition.
6. Though on the earlier occasion, the learned counsel appearing for
the review petitioners taken a stand that no actual compromise was entered
into between the parties, as per the documents, the respondents could able to
establish that a Joint Memo was filed before the Trial Court, which was
recorded. It was agreed between the parties to sell the subject property to a
third party and settle the advance amount and such an agreement was also
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C.R.P.No.1351 of 2022
placed before the Trial Court.
7. In short, the Joint Memo was signed between the plaintiffs and the
defendants and even the respective learned counsel appearing on behalf of
the parties were aware of the said factum. The said Joint Memo reveals that
the suit was instituted for specific performance and for an alternate relief to
refund the advance amount with interest.
8. During the pendency of the suit, a compromise was entered into
between the parties to sell the subject property to a third person and settle
the advance amount in favour of the plaintiffs. The sale date was also fixed
as 07.11.2018. For the purpose of execution of the Sale Deed in favour of a
third person, the document No.2281/2016 dated 26.07.2016, filed along
with the plaint, is to be returned back to the plaintiffs, as per their request
and the Court also passed an order and returned the document.
9. Apart from the Joint Memo filed by the plaintiffs and the
defendants before the Trial Court, a written statement was also filed
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subsequently. In the written statement, the defendants have categorically
admitted their liability and the relevant paragraph-13 is extracted as under:-
"Pending suit, on 01.11.2018, both plaintiffs
and the defendants entered into a panchayat and the
defendants agreed to pay a sum of Rs.1,25,00,000/-
(Rupees one crore and twenty five lakhs only) (as
claimed by the said Seerangan and the plaintiff) to
them and the suit property should be sold to third
parties namely Venkatachalam, son of
Marappagounder of Poosaripalayam,
Sathyamangalam and discharge the above amount
with interest at the rate of 9% per annum. An
unregistered Sale Agreement receipt for
Rs.20,00,000/- (Rupees twenty lakhs only) was
executed on 05.03.2018 between third defendant and
the aforesaid Mr.Venkatachalam, for the sale of suit
property.?"
10. Considering the Memo filed by the parties, admitting the liability
and to make arrangements to settle the advance amount along with interest
as made for in the suit and further considering the admission categorically
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C.R.P.No.1351 of 2022
made by the defendants in their written statement, this Court also considered
the entire facts and dismissed C.M.A.No.22 of 2021 filed by the defendants
on 31.03.2021.
11. The defendants preferred Special Leave Petition before the
Hon'ble Supreme Court, which was also dismissed. Thereafter, the plaintiffs
in the suit filed an Execution Petition in E.P.No.44 of 2021. The execution
proceedings was instituted by the third party as per the assignment made by
the plaintiffs. The said execution proceedings initiated by the assignee was
challenged before this Court in C.R.P.No.1351 of 2022. That apart, the
Review Application No.25 of 2022 was also filed by the defendants to
review the order passed in C.M.A.No.22 of 2021.
12. Considering the facts and circumstances, this Court is of the
considered opinion that the subject property has already been assigned in
favour of the third party by the plaintiffs based on the decree passed by the
Trial Court. The Civil Miscellaneous Appeal filed by the defendants was
dismissed and the further appeal to the Hon'ble Supreme Court was also
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Rev.Appl.No.25 of 2022 &
C.R.P.No.1351 of 2022
rejected. Meanwhile, the plaintiffs had assigned the subject property in
favour of the third party, who in turn filed an Execution Petition, which was
also challenged by the defendants in C.R.P.No.1351 of 2022.
13. The main ground raised by the petitioners is that the assignment
was done in favour of the third party without getting permission from the
Trial Court under Order 21 Rule 16 of Code of Civil Procedure. In this
regard, the learned counsel for the respondents relied on the judgment of the
3 Judges Bench of the Hon'ble Supreme Court in the case of Dhani Ram
Gupta and others Vs. Lala Sri Ram and another reported in (1980) 2
SCC 162, wherein the following observations are made:-
"We are unable to read Order 21, rule 16 as
furnishing any foundation for the basic assumption of
the learned counsel for the respondent that property
in a decree does not pass to the transferee under the
assignment until the transfer is recognised by the
Court. Property in a decree must pass to the
transferee under a deed of assignment when the
parties to the deed of assignment intend such property
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to pass. It does not depend on the Court's recognition
of the transfer. Order 21, rule 16 neither expressly
nor by implication provided that assignment of a
decree does not take effect until recognised by the
Court. It is true that while Order 21, rule 16 enables a
transferee to apply for execution of the decree, the
first proviso to Order 21, rule 16 enjoins that notice of
such application shall be given to the transferor and
the judgment-debtor and that the decree shall not be
executed until the Court has heard their objections, if
any, to its execution. It is one thing to say that the
decree may not be executed by the transferor until the
objections of the transferor and the judgment-debtor
are heard, it is an altogether different thing to say
that the assignment is of no consequence until the
objections are heard and decided. The transfer as
between the original decree-holder and the transferee
is effected by the deed of assignment. If the judgment
debtor has notice of the transfer, he cannot be
permitted to defeat the rights of the transferee by
entering into an adjustment with the transferor. If the
judgment debtor has no notice of the transfer and
enters into an adjustment with the transferor before
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C.R.P.No.1351 of 2022
the transferee serves him with notice under Order 21,
rule 16, the judgment-debtor is protected. This in our
view is no more than plain good sense. In Dwar Buksh
Sirkar vs. Fatik Jali, the decree holder represented to
the Court that the judgment debtor had satisfied the
decree by payment and wanted his execution
application to be disposed of accordingly. Before
satisfaction could be recorded a transferee of the
decree from the original decree-holder intervened and
claimed that satisfaction could not be recorded as
there was a valid transfer of the decree in his favour
prior to the alleged payment by the judgment debtor
to the original decree holder. The argument before the
High Court was that the assignee could not prevent
the recording of the satisfaction of the decree as he
had not filed an execution application and got the
assignment in his favour recognised. The High Court
of Calcutta observed:
"The only provision in the Code referring
expressly to the assignment of a decree is
contained in Section 232, and that no doubt
contemplates a case in which the assignee
applies for execution. In such a case the Court
may, if it thinks fit, after notice to the decree-
holder and the judgment-debtor, allow the
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decree to be executed by the assignee. If,
however, there is an assignment pending
proceedings in execution taken by the decree-
holder, I see nothing in the Code which debars
the Code from recognising the transferee as the
person to go on with the execution. The
recognition of the Court is no doubt necessary
before he can execute the decree, but it is the
written assignment and not the recognition which
makes him the transferee in law. The omission of
the transferee, if it was an omission, to make a
formal application for execution, was merely an
error of procedure and does not affect the merits
of the case. . It is argued for the respondent that
the transferee's title was not complete as express
notice of the transfer had not been given to the
judgment-debtor. As already observed, the
transfer, as between transferor and the
transferee, is effected by the written assignment.
If the judgment-debtor had no notice of the
transfer and being otherwise unaware of it paid
the money to the decree-holder, the payment was,
of course, a good payment, and he cannot again
be held liable to the transferee".
We express our agreement with the observations made
by the Calcutta High Court."
14. The Hon'ble Supreme Court in the case of Vaishno Devi
Construction Vs. Union of India reported in (2022) 2 SCC 290 has
reiterated the principles laid down by the Supreme Court on earlier
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occasions in paragraph 24 to 26, which reads as under:-
"24. On analysis of the submissions there is
little doubt that the impugned judgments would have
been completely in accordance with law if the
amendments were not made in 1976 and would have
been fully covered by the judgment in Jugalkishore
Saraf. Thus, the only aspect which we have to consider
is whether that amendment made any difference to the
legal position as enunciated in the said judgment.
25. It is an admitted position that the
explanation was added to Order 21 Rule 16 which did
not exist earlier, pursuant to the recommendations
made by the Law Commission of India in its 54th
Report on the Civil Procedure Code, 1908. The
Explanation was so added due to conflicting High
Courts’ decisions on the question, i.e., whether a
person who does not have a written assignment of the
decree, but who has succeeded to a decree holders’
right, is entitled to such decree under Section 146 of
the CPC.
26. In Ponniah Pillai v. T.Natarajan Asari, the
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C.R.P.No.1351 of 2022
Madras High Court decided this question in the
affirmative. The High Court gave liberty to the
transferees to avail of Section 146 if they did not fall
within the provisions of Order 21 Rule 16 CPC and,
thus, would cover transferees of a property after the
decree was passed. In this behalf the learned Judge
disagreed with an earlier judgment of the Madras
High Court in K.N.Sampath Mudaliar v. Sakunthala
Ammal opining that Section 146 CPC could not have
the effect of overriding Order 21 Rule 16 CPC. The
Law Commission agreed with the view taken in the
former judgment (which was delivered at a later point
of time) and further noted that this view was
supported by the High Courts of Andhra Pradesh,
Patna and Kerala as well. Thus, the Law Commission
recommended amending Order 21 Rule 16 to clarify
that it does not affect the provisions of Section 146
and that a transferee of rights in the subject-matter of
the suit can obtain execution of a decree without
separate assignment of the decree. The objective
appears to be to not have multifarious proceedings to
determine the issue of assignment, but to determine
the issue of assignment in the execution proceedings
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itself."
15. The rights of the plaintiffs in the present case have already been
crystallized by way of a decree, against which, the defendants filed an
application to set aside the same, which was dismissed by the Trial Court.
Having aggrieved, the defendants filed Civil Miscellaneous Appeal before
this Court and considering the facts and circumstances and also by
considering the Joint Memo and the compromise arrived between the parties
and further considering the admission of liability by the defendants before
the Trial Court, the Civil Miscellaneous Appeal was dismissed by this Court,
which was further confirmed by the Hon'ble Supreme Court. Thus, there is
no question of obtaining further permission by the assignee. No such
permission needs to be obtained, in view of the fact that the rights of the
plaintiffs in respect of the scheduled property have already been confirmed
by virtue of a decree and by applying the principles in this regard, the very
ground raised by the petitioners deserves no merit consideration.
16. That apart, the petitioners in the present Review Application and
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Civil Revision Petition have all along obtained adjournments from this Court
only on the ground that they have initiated steps to settle the matter. Even
today, the learned counsel appearing for the petitioners made a submission
that the petitioners are ready to pay a sum of Rs.50,00,000/- to the
respondents and requested for further time. It is also brought to the notice of
this Court that the petitioners are ready with a cheque for a sum of
Rs.50,00,000/-. However, the very submission in this regard need not be
considered by this Court, as a Compromise Memo was entered into between
the parties even before the Trial Court and after entering into a compromise
and after rejection of the petition, the petitioners have chosen to file petition
after petition before the High Court and the Supreme Court and therefore,
the said statement deserves no consideration from the hands of this Court. It
is between the parties to settle the issues. Even now, the Court cannot wait
for such settlement or prolong the litigation merely on the said ground.
17. Parties cannot make an attempt to settle partial amount for the
purpose of getting adjournments and keep the matters pending for a long
period. Courts cannot assist any such litigant in this regard. Once the parties
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have entered into an agreement before the Trial Court and the Trial Court
has given ample opportunities to the parties to settle the issues, the parties
have not availed such opportunities and in violation of their own submission
and undertaking before the Trial Court, they have chosen to develop the
litigation by approaching the High Court and Supreme Court and therefore,
no further leniency is to be shown and any leniency shown would cause
prejudice to either of the parties. Thus, this Court is of an opinion that the
submission made in this regard is to be rejected.
18. In view of the fact that the petitioners in the Review Application
and the Civil Revision Petition have not availed the opportunity to settle the
issue as per their own undertaking and made an attempt to prolong and
protract the issues by way of further litigations, they are not entitled for any
further opportunity or leniency. Further, since the rights of the respondents
in the present Review Application and the Civil Revision Petition have
already been crystallized, there is no infirmity in respect of the assignment
made by them, as no such prior permission is required under the Code of
Civil Procedure, since the respondents/plaintiffs have got an absolute right to
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deal with the property, pursuant to the decree passed by the Courts, which
remains in force.
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C.R.P.No.1351 of 2022
S.M.SUBRAMANIAM, J.
hvk
19. With the above findings, both the Review Application and the
Civil Revision Petition stand dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
08.08.2022
Index:Yes
Internet:Yes
Speaking order
hvk
To
The III Additional District Judge,
Erode at Gobichettipalayam.
Rev.Appl.No.25 of 2022
and
C.R.P.No.1351 of 2022
https://www.mhc.tn.gov.in/judis
