Madras High Court
M.Chandrasekar vs Vijayalakshmi on 31 October, 2022
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
C.R.P.No.1424 of 2021
and
C.M.P.No.11095 of 2021
1.M.Chandrasekar
2.M.Venkatesan
3.Jayalakshmi ... Petitioners
Vs.
1.Vijayalakshmi
2.The Managing Director,
Tamil Nadu Slum Clearance Board,
Kamarajar Salai,
Chennai - 600 005.
3.The Executive Engineer - IV,
TNSCB, T.P.Chatram,
Chennai - 600 010.
4.J.Maheswari
5.M.Balaraman ... Respondents
Page 1 of 10
https://www.mhc.tn.gov.in/judis
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
Prayer: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, 1908 to set aside the fair and decreetal orders dated
31.03.2021 passed in E.A.No.2 of 2020 in E.A.No.1 of 2020 in
E.P.No.520 of 2006 in O.S.No.9612 of 1996 on the file of the Hon'ble X
Assistant City Civil Court, Chennai.
For Petitioners : Mr.K.M.Vivekanandan
For R1 : Mr.S.V.S.Ilamvazhuthi
For R2 & R3 : Mr.S.Karthikeyan, Standing Counsel
ORDER
This petition has been filed to set aside the fair and decreetal
orders dated 31.03.2021 passed in E.A.No.2 of 2020 in E.A.No.1 of
2020 in E.P.No.520 of 2006 in O.S.No.9612 of 1996 on the file of the
Hon'ble X Assistant City Civil Court, Chennai.
2.For the sake of convenience, the parties are referred to as per
their ranking in the trial Court in the original suit and in appropriate
places, their rank in the present petition would also be indicated.
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C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
3.The brief facts of the case is as follows :
1) The revision petitioners are the petitioners in E.A.No.2 of 2020 in
E.A.No.1 of 2020 in E.P.No.520 of 2006 on the file of the X
Assistant Judge, City Civil Court, Chennai. They are third parties
in E.A.No.1 of 2020 in E.P.No.520 of 2006 in O.S.No.9612 of
1996.
2) The fourth respondent Mrs.J.Maheswari filed a suit for recovery of
money due under a pronote in O.S.No.9612 of 1996 against one
Govindammal (since deceased) and M.Balaraman (fifth respondent
herein).
3) According to Mrs.J.Maheswari (plaintiff in O.S.No.9612 of 1996
and fourth respondent herein) both Govindammal (D1) and her son
M.Balamurugan (D2) borrowed a sum of Rs.1,75,000/- from her
on 07.03.1991 and executed a promissory note promising to repay
the principal together with interest at the rate of 12% per annum on
demand by the plaintiff or to her order.
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C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
4) It is the further contention of the plaintiff that the first defendant
Govindammal also created an equitable mortgage by deposit of title
deeds of her property bearing Plot No.24, D.No.134,
Venkataswamy Naidu Puram, T.P.Chatram, Chennai - 600 010
measuring 96 sq.metres morefully described in the plaint.
5) During the pendency of suit the death of the first defendant
Govindammal was brought to the knowledge of the Court and it
was recorded. Her son second defendant was already on record as
D2.
6) Since D2 did not contest the suit, the suit was decreed ex parte and
an ex parte decree was passed on 28.11.2000.
7) Thereafter, the decree holder (fourth respondent) filed E.P.No.520
of 2006 before the learned X Assistant Judge, City Civil Court,
Chennai and brought the property of the judgment debtor for sale.
The present revision petitioners filed a claim petition under Order
XXI Rule 58 CPC in E.A.No.6935 of 2008. The said petition was
dismissed for default with costs Rs.3,000/- to be paid to the decree
holder.
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C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
8) Subsequently, the property was sold in Court auction on
07.09.2009 in which one Mrs.Vijayalakshmi (1st respondent
herein) was the successful bidder. The sale was confirmed on
12.11.2009 and a sale certificate was issued on 22.06.2010.
4.The decree holder filed E.A.No.1 of 2020 against the
Managing Director and Executive Engineer, Tamil Nadu Slum Clearence
Board (respondents 2 & 3 herein) directing them to furnish survey
number and boundaries in respect of the property purchased by her in the
Court auction sale. During the pendency of the said petition the present
revision petitioners filed E.A.No.2 of 2020 in E.A.No.1 of 2020 to get
themselves impleaded as parties to the proceedings on the following
grounds:
1) The decree in O.S.No.9612 of 1996 was passed against a dead
person.
2) After the death of their mother Govindammal all the legal heirs
were not brought on record in the suit in O.S.No.9612 of 1996.
3) The suit in O.S.No.9612 of 1996 itself was based on a time barred
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C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
debt.
4) The petitioners are proper and necessary parties in E.A.No.1 of
2020.
The said petition was dismissed by the learned X Assistant Judge, City
Civil Court, Chennai vide his fair and decreetal orders dated 31.03.2021.
Challenging the same the present Civil Revision Petition is filed.
5.Heard Mr.K.M.Vivekanandan, learned counsel appearing for
the revision petitioners and Mr.S.V.S.Ilamvazhuthi, learned counsel
appearing for the respondents 2 & 3.
6.At the outset it may be observed that the suit in O.S.No.9612
of 1996 was filed before the learned III Assistant Judge, City Civil Court,
Chennai and the death of the first defendant was recorded by the Court
before passing of the decree. In the decree in O.S.No.9612 of 1996 the
first defendant is clearly shown as "dead". Therefore, it cannot be said
that a decree was passed against a dead person. The suit was filed for
recovery of money due under a pronote executed by late Govindammal
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C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
and her son Balamurugan. Since Govindammal died and her son
Balamurugan was already on record the same was recorded by the trial
Court. The revision petitioners who claim to be the other legal heirs of the
deceased Govindammal did not file any petition to get themselves
impleaded as parties to the suit. Their brother (second defendant)
remained absent and was set ex parte and an ex parte decree was passed
on 26.12.2000.
7.The contention of the revision petitioners that the debt is time
barred cannot be gone into in the execution proceedings. This is moreso
because the executing Court cannot go beyond the decree. In fact on an
earlier occasion the very same revision petitioners filed E.A.No.6935 of
2008 under Order XXI Rule 58 CPC on the same grounds urged in the
present petition. However, since they did not pursue the matter it was
dismissed for default with heavy costs of Rs.3,000/- to be paid to the
decree holder.
https://www.mhc.tn.gov.in/judis
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
8.Thereafter, Court auction sale was conducted and the
property was sold to the first respondent herein. Sale certificate also was
issued on 22.06.2010 after confirmation of sale on 12.11.2009. Thus
much water has flown under the bridge. At this stage the revision
petitioners want to get themselves impleaded in E.A.No.1 of 2020 filed by
the Court auction purchaser against the Slum Clearence Board seeking
the latter to furnish the boundaries and survey number. In the said
petition, the present revision petitioners cannot be said to either proper or
necessary parties to the petition because necessary party is one without
whom no order can be effectively made and a proper party is one in
whose absence an effective order can be made but whose presence is
necessary for a complete and final decision on the question involved in
the proceedings. Therefore, the executing Court was right in dismissing
the petition. The petitioner in fact did not show any interest in
prosecuting the case effectively and their only intention seems to be
dragging on the proceedings as far as possible.
https://www.mhc.tn.gov.in/judis
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
9.Accordingly, the Civil Revision Petition is dismissed. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
31.10.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
https://www.mhc.tn.gov.in/judis
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
R. HEMALATHA, J.
mtl
To
1.The X Assistant City Civil Court, Chennai.
2.The Section Officer, VR Section, High Court, Madras.
C.R.P.No.1424 of 2021
and C.M.P.No.11095 of 2021
31.10.2022
https://www.mhc.tn.gov.in/judis
