Bagyalakshmi vs N.Selvakumari
2022 Latest Caselaw 1647 Mad

                                                                                 CRP.NPD.No.1152/2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 02.02.2022

                                                         CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                    CRP.NPD.No.1152/2019 and CMP.No.7420/2019

                                                       [Virtual Mode]

                    Bagyalakshmi                                            .. Petitioner

                                                            Vs.

                    N.Saraswathiammal (died)
                    1.N.Selvakumari
                    2.Neelavathi
                    3.Ramadoss                                              .. Respondents

                    Prayer:- Civil Revision Petition filed under Section 115 of CPC to set aside
                    the fair and decreetal order dated 03.12.2018 passed in REA.No.159/2018
                    against EP.No.24/2018 in O.S.No.125/2010 on the file of the learned
                    Principal Sub-ordinate Court at Krishnagiri.


                                      For Petitioner              :     Mr.Selvirajesh
                                      For R1                      :     No appearance
                                      For R2                      :     No appearance
                                      For R3                      :     Mr.A.Muthukumar



https://www.mhc.tn.gov.in/judis                              1
                                                                                    CRP.NPD.No.1152/2019


                                                             ORDER

(1) This Civil Revision Petition is directed against the order in

REA.No.159/2018 against the REP.No.24/2018 in O.S.No.125/2010

passed by the Principal Sub Court, Krishnagiri.

(2) Brief facts that are necessary for the disposal of this Civil Revision

Petition are as follows:

(3) The petitioner, admittedly is a third party to the proceedings in

O.S.No.125/2010. The said Suit in O.S.No.125/2010 before the

Principal Sub Court, Krishnagiri was filed by the 4th respondent in

the Civil Revision Petition for partition of 1/4th share in the Suit

property.

(4) It is not in dispute that the Preliminary Decree was granted. It is also

not in dispute that after the Preliminary Decree one of the sharers

died and therefore, the plaintiff/4th respondent applied for

modification of shares and the Preliminary Decree which was passed

in the Suit was modified by granting 1/3rd share to the 4th

respondent/plaintiff.

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(5) It is admitted that the Suit in O.S.No.125/2010 is also for permanent

injunction restraining the defendants in the Suit from dealing with

the property which is the subject matter of the Suit. Despite the fact,

that the Preliminary Decree and a decree for permanent injunction

was granted on 12.01.2011 and the subsequent decree modifying the

share from 1/4th to 1/3rd was given by another decree dated

06.08.2013, the revision petitioner has purchased the Suit property

from the 2nd defendant in the Suit by a Sale Deed dated 29.10.2012.

(6) The Sale Deed itself is in utter disregard to the decree for injunction

granted against the 2nd defendant, the vendor of the revision

petitioner. It is also stated by the plaintiff that the sale is a fraudulent

one. It is admitted that the sale in favour of the revision petitioner is

during the pendency of proceedings. The sale is not only fraudulent

but also in utter disregard and disobedience to the decree granted by

the Court in the Suit in O.S.No.125/2010.

(7) The revision petitioner earlier filed a petition to implead herself as

CRP.NPD.No.1152/2019

party to the Execution Petition. It is admitted that the said

application was dismissed on the ground that the remedy for the

revision petitioner is to proceed against the 2nd defendant and not to

claim any right over the property on the basis of the Sale Deed

which was executed, during the pendency of proceedings and

against an order granting injunction restraining the defendants from

alienating the property. Though the petitioner states that she is

innocent and bonafide purchaser, the fact that the sale in her favour

is hit by lis pendens and that the same was in violation of decree for

injunction granted by the Competent Court are admitted.

(8) The application filed by the revision petitioner in I.A.No.605/2015

to implead himself as a party to the Suit in O.S.No.125/2010 was

dismissed. The petitioner challenged the order before this Court in

CRP.No.4473/2017. This Court after recording the admitted facts

that the Sale Deed obtained by the revision petitioner is hit by lis

pendens and the application is filed by the revision petitioner at the

final decree proceeding, was of the view that the belated application

filed by the revision petitioner cannot be entertained and that it is

CRP.NPD.No.1152/2019

open to the revision petitioner to proceed against the 2nd defendant

in the Suit independently.

(9) It is stated that against the order passed in this Civil Revision

Petition, the revision petitioner has filed a Review Application in

SR.No.20219/2018. Very strangely, the revision petitioner has also

filed an application in E.A.No.159/2018. In the meanwhile, it is

admitted that the final decree application was allowed and final

decree was passed. Thereafter, the plaintiff filed Execution Petition

in EP.No.24/2018 for delivery of property allotted to the plaintiff.

(10) Delivery was also effected on 04.01.2019. When these facts are not

in dispute, the revision petitioner has filed an application in

E.A.No.159/2018 in EP.No.24/2018 to stay further proceedings in

connection with the EP.No.24/2018 in O.S.No.125/2010 pending

disposal of the review petition in Review Application

SR.No.20219/2019 pending before this Court.

(11) After filing counter, the Lower Court dismissed the application by

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order dated, 03.12.2018. Aggrieved by the order dismissing the

application to stay the execution proceeding, the above Civil

Revision Petition is filed.

(12) The learned counsel appearing for the revision petitioner submitted

that the Lower Court erroneously dismissed the stay application

without appreciating the genuine and bona fide claim of the

petitioner.

(13) The learned counsel further submitted that the petitioner has also

filed an application under Section 47 of CPC and that the Lower

Court ought not to have dismissed the application pending the other

application filed under Section 47 of CPC. Learned counsel further

submitted that the Lower Court did not examine any evidence and

passed an order without permitting the petitioner to prove her

contentions or giving an opportunity to her.

(14) It is submitted that the order of Lower Court is against the principles

of natural justice. The learned counsel submitted that the Lower

Court did not notice the pendency of Review Application before this

Court while dismissing the application filed by the revision petitioner

CRP.NPD.No.1152/2019

to stay the proceedings. Since the petitioner is the owner of the

property having purchased the same from one of the parties to the

Suit for partition, learned counsel submitted that the petitioner

should be given the relief as right to claim a share by stepping into

the issues of one of the co-owner cannot be curtailed.

(15) None of the submissions of the learned counsel is appealing to this

Court, having regard to the admitted facts.

(16) First of all, the revision petition has become infructuous by delivery

of property which was effected on 04.01.2019. By delivery of the

property through execution of the final decree, the Execution

Petition comes to an end. Therefore, the application filed by the

revision petitioner for stay of proceedings in EP.No/24/2018 in

O.S.No.125/2010 is unnecessary as the prayer has become

infructuous.

(17) As pointed out earlier, the revision petitioner has purchased the

property from the 2nd defendant in the Suit, despite the Preliminary

Decree in favour of the plaintiff. It is also admitted that the

CRP.NPD.No.1152/2019

alienation in favour of the revision petitioner was in utter disregard

to the decree of the Trial Court in the Suit granting permanent

injunction restraining the defendants from alienating or creating any

sort of documents in favour of anybody in respect of the Suit

properties.

(18) After judgment and decree dated 06.08.2013 in O.S.No.125/2010,

final decree was passed and delivery as per final decree was

effected. In the factual background, the application filed by the

revision petitioner to stay the proceeding merely because the review

application is pending cannot be entertained.

(19) Despite pointing out the fact that by delivery of possession the

prayer before the Lower Court to stay the proceedings became

infructuous and that the Civil Revision Petition does not stand for

further scrutiny, learned counsel vehemently argued that the petition

filed by the revision petitioner before the Lower Court is

maintainable and can be pursued since the application filed by the

revision petitioner in EA.No.342/2018 to stay all further proceeding

in EP.No.24/2018 is pending along with another application filed

CRP.NPD.No.1152/2019

under Section 47 of CPC.

(20) It is admitted that EA.No.341/2018 is also filed under Section 47 of

CPC with the prayer to enable the petitioner to retain possession of

the property by dismissing the Execution Petition in EP.No.24/2018.

From the additional facts supplied by the revision petitioner, this

Court has found that the revision petitioner has made several

attempts to twart the execution proceedings, without approaching

the Court at the appropriate time seeking appropriate relief.

Assuming that the petitioner in the review application is allowed, the

petitioner cannot pursue the present application to stay the execution

after delivery.

(21) There is nothing to stay the further proceedings in the Execution

Petition which had come to an end by directing delivery of the

property as per the final decree. Though this Court after pointing out

the several lapses and the conduct of the revision petitioner, learned

counsel has only exposed the wrong advice given to the petitioner

in making several attempts by filing unwanted

CRP.NPD.No.1152/2019

applications at various stages. The revision petitioner has filed an

application earlier to implead himself as a party to the Suit after the

Preliminary Decree is passed. However, this Court finds that the

grievance of the petitioner was never considered on merits as the

petitioner did not seek appropriate remedy at the appropriate time.

The petitioner cannot get any relief in this Civil Revision Petition

after delivery of property. The petitioner has pleaded fraud which

can be independently established.

(22) Even after, this Court started dictating this order, the learned counsel

for the revision petitioner was arguing the case once again from the

beginning unnecessarily.

(23) In the result, the Civil Revision Petition is dismissed with the cost

of Rs.10,000/-[Rupees Ten Thousand Only] payable by the

revision petitioner to the 4th respondent/plaintiff within the

period of two weeks from the date of receipt of a copy of this

order. However, it is open to the revision petitioner to prosecute the

application filed under Section 47 of CPC to its logical end and the

Lower Court may dispose of that application on merits and

CRP.NPD.No.1152/2019

uninfluenced by any observations made in this order.

02.02.2022 cda Internet : Yes

To The Principal Sub-ordinate Court, Krishnagiri.

CRP.NPD.No.1152/2019

S.S.SUNDAR, J.,

cda

CRP.NPD.No.1152/2019

02.02.2022

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