Madras High Court
T.Manickam vs Ramasamy on 28 February, 2022
CRP (NPD) No. 3831 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CRP (NPD) No. 3831 of 2017
And
C.M.P.No. 17897 of 2017
1. T.Manickam
2. Jayalakshmi ... Petitioners/Respondents/Respondents 13 to 14
Vs
1. Ramasamy ... Respondent/Petitioner/Decree holder
Kuppammal (died)
2. Perumal
3. Selvam
4. Jayanthi
5. Rani
6. Anitha
7. Vanitha
8. Punitha
1/10
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
9. Uma Maheswari
10. Sujatha
11. Priya
12. Chithra ... Respondents/Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India against the fair and decreetal order dated 26.07.2017 and made in
E.A.No. 23 of 2017 in REP.No. 168/1997 in O.S.No. 28 of 1986 on the file
of the District Munsiff Court, Harur.
***
For Petitioners : Mr. C.Umashankar
For 1st Respondent : Mr. A.Ilayaperumal
ORDER
The entire revision petition arises from a Civil Suit in O.S.No. 28
of 1986. Further proceedings in the Civil Suit are still pending on the file of
the District Munsif Court, Harur.
2. The first respondent herein Ramasamy was the plaintiff in the
said suit. The said suit in O.S.No. 28 of 1986 had been filed against five
defendants and the relief sought was that there should not be any restraint
on the plaintiff using the pathway, going from the house of the plaintiff to
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
Pennagaram road and further, that in the said pathway, there should not be
any obstruction and that, the obstructions already put up by the defendants
should be removed. It is thus seen that the suit was restricted to what was
termed as a pathway which had been described as 'F' 'C' 'D' E''. The suit was
valued for the purposes of valuation of Rs.800/- and the fixed Court fees
under Section 25(d) and Section 27(c) of the Tamil Nadu Court Fees and
Suits Valuations Act, 1955 had been paid.
3. A Judgment was pronounced on 26.06.1990 by the District
Munsif, Dharmapuri. By the said Judgment, since the defendants did not
appear, they had been set ex-parte and the District Munsif examined Exs. A-
1 to A-3 and decreed the suit.
4. The plaintiff then filed E.P.No. 21 of 1991 and the said
Execution Petition is now termed as R.E.P.No. 168 of 1997 on transfer on
constitution of District Munsif Court at Harur. The said R.E.P.No. 168 of
1997 which in effect E.P.No. 21 of 1991 is still pending.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
5. In the meanwhile, owing to efflux of time, the third and fourth
defendants Mani and Murugesan died and their legal representatives were
brought on record. This naturally brought the number of defendants from
the original file filed to thirteen after excluding Mani and Murugesan, who
were shown as defendants, but not serialised.
6. It appears that subsequently two individuals T.Manickam and
M.Jayalakshmi had purchased the property from the plaintiff/Ramasamy
and they were also impleaded as defendants and they were called
subsequent purchasers. They had purchased the property, I am informed on
18.03.2013.
7. It is the grievance of Ramasamy, the original plaintiff, who had
sold the property along with co-owners that not only the aforementioned
pathway for which the suit was filed, but also a larger extent of land had
been sold, but, however, the entire sale consideration had not been paid. It
is the contention of the subsequent purchasers that the entire sale deed itself
contains a covenant that the sale consideration had been paid.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
8. Section 92 of the Evidence Act, 1872 naturally comes into play
which stipulates that no amount of oral evidence can be let in contrary to the
covenants in a written document. I will leave that at that.
9. Be that as it may, in R.E.P.No. 168 of 1997, an endorsement
was made that the original owners had handed over the property to decree
holder, who had sold it to the subsequent purchasers and that therefore,
nothing further survives and that the Execution Petition should be
terminated. That was protested by the respondent/plaintiff, who still
contended that substantial portion of about 30 lakhs of the sale
consideration had not been paid and therefore protested termination of the
Execution Petition.
10. The matter reached this Court by way of a Civil Revision
Petition in C.R.P.No. 3040 of 2014. By an order dated 29.04.2016, a learned
Single Judge of this Court had examined the rival contentions, namely, the
contention that the subsequent purchasers had actually purchased the
property, that though inspite of a sale deed having been executed and sale
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
deed containing a covenant with respect to the payment of sale
consideration, there was still a contention that the entire sale consideration
had not been paid. The learned Judge therefore opined that therefore,
Section 55 of the Transfer of Property Act, 1882 would come into effect and
that therefore, the unpaid vendors can exercise the rights under the said
provision and that when such a contention is raised, termination of the
Execution Petition was not proper and that every party should be given an
opportunity to let in all evidence with respect to not only the sale but more
particularly also whether the sale consideration had been fully paid or not
fully paid and therefore, set aside the termination of the Execution Petition.
The Executing Court was directed to give full opportunity to all the parties to
present all their submissions.
11. Thereafter, the decree holder, who had to lead evidence and
who contended that sale consideration had not been fully paid, filed an
application under Order VII Rule 14(3) of the Civil Procedure Code seeking
permission to file documents and to bring them on record. A string of 66
documents had been filed.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
12. It is the contention of the Decree Holder that though sale deed
had been executed, the consideration had not been paid. The learned Single
Judge in the earlier Revision Petition also stated that the issue of possession
should be decided by the Executing Court. Among these 66 documents, it is
quite difficult to find out which actually are relevant documents. But at any
rate, pending the present Revision Petition, I am informed that the 66
documents have been marked as Exhibits.
13. The learned District Munsif must kept in mind that every
document does not take the colour of evidence and can be termed as
evidence only when they are admissible in law, only when they they are
relevant and are proved in manner known to law and only when they are
genuine. If they fail any of the above tests, the documents, even if given
Exhibit Numbers, cannot be considered during the course analysing the
evidence recorded.
14. Now, the District Munsif at Harur will naturally have to
undertake that particular exercise to sift the exhibits to find out which
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
actually are relevant and which have been proved in manner known to law
and which are actually admissible in evidence.
15. Let him / her therefore first enter into that particular venture
and examine each one of the documents. Thereafter, let the proceedings go
further in manner known to law. It is hoped that merely because the matter
has been remanded back by the learned Single Judge, the parties cannot
widen the scope of the Execution Petition. It must be kept in mind that the
Execution Petition can have as its four boundaries, the decree which is
sought to be executed. It cannot travel beyond them. Let therefore, the
District Munsif, Harur, to examine the decree which has been passed and
pass an order with respect to the execution of that particular decree. If there
are additional issues or if possession as an issue is raised then, the party,
who claims to be in possession should prove possession. Documents
relating to possession alone must be examined.
16. There has been an averment in C.R.P.NPD.No. 3040 of 2014
relating to Section 55 of the Transfer of Property Act, 1882. Since that order
stands, it may not be proper on my part, to examine in detail the nature of
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
documents advanced or the factors which propelled the learned Single Judge
to come to that conclusion.
17. Be that as it may, let the District Munsif, Harur actually
determine the documents which are relevant directly to the issues of sale,
possession and payment of consideration. These are the only three aspects
which should be examined.
18. Let a finding be given on those three aspects and it is made
clear that merely because the matter had been remitted, the parties have not
been given leverage to widen the Execution Petition into a suit, which it is
not. It still remains, an Execution Petition bound within the four corners of
the decree passed in the suit. It must be also be kept in mind that the
defendants in the suit had thought it judicious to remain exparte and
therefore, the decree in the suit which was confined to a pathway in the
plaint may now be examined by the District Munsif, Harur and further
examine whether execution can beyond the decree or not. That is the simple
issue which the District Munsif Court will have to examine.
https://www.mhc.tn.gov.in/judis
CRP (NPD) No. 3831 of 2017
C.V.KARTHIKEYAN, J.
Vsg
19. Let the Execution Petition be posted if not on a day to day
basis, at least with a gap of three working days in between any two
adjournments. The parties must co-operate to permit the District Munsif,
Harur, to devote some attention and to dispose of REP.No. 168 of 1997 on
before 31.07.2022.
20. With the said observation, this Civil Revision Petition is
disposed of. No costs.
28.02.2022
vsg
Index: Yes/No
Speaking order / Non speaking order
To:
1. District Munsif Court, Harur.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
CRP (NPD) No. 3831 of 2017
And
C.M.P.No. 17897 of 2017
https://www.mhc.tn.gov.in/judis
