Madras High Court
Rajkumaran vs Kaliyaperumal on 3 January, 2023
CRP No.1297 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.1297 of 2016
and CMP.No.7254 of 2016
1.Rajkumaran
2.Chandrabose ..Petitioners
Vs.
1.Kaliyaperumal
2.Karunanithi ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the order and decreetal order made in E.A.No.33 of 2010 in
E.P.No.55 of 2009 in O.S.No.49 of 1997 passed by the Subordinate Judge,
Panruti, and allow the civil revision petition.
For Petitioners : Mr.S.Ganesh
For Respondents
For R1 : Mr.P.Dineshkumar
for Mr.D.Ravichander
For R2 : No appearance
ORDER
The civil revision petition has been filed as against the fair and decreetal
order dated 11.01.2016 passed in E.A.No.33 of 2010 in E.P.No.55 of 2009 in
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CRP No.1297 of 2016
O.S.No.49 of 1997 on the file of the Subordinate Judge, Panruti, thereby
dismissing the petition filed under Section 47 of CPC seeking to enquire into the
matter and determine the question of executability of the decree and adjudicate
upon the claim of the petitioners.
2. The first respondent herein filed a suit for partition claiming 1/5th share
in respect of the suit properties. The said suit was decreed in favour of the first
respondent. As against the preliminary decree no one has filed any appeal suit.
On the strength of the preliminary decree, the first respondent filed an
application for final decree in I.A.No.398 of 2000. In the final decree
application, an Advocate Commissioner was appointed and he inspected the
property and submitted his report. In his report, the extent of the property in
respect of item No.7 of the suit schedule property was wrongly mentioned as
1.25 acres instead of 20 cents out of 45 cents. As per the Advocate
Commissioner's report, the final decree was passed. The said final decree was
challenged by the petitioner herein before this Court in appeal suit and the same
was dismissed and confirmed the final decree passed by the Trial Court. On the
basis, the first respondent herein filed an Execution Petition in E.P.No.11 of
2002. Pending the Execution Petition, the petitioner herein filed an application
under Section 47 of CPC in E.A.No.33 of 2010 to enquire into the matter and
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CRP No.1297 of 2016
determine the question of executability of the decree and adjudicate upon the
claim of the petitioner. It was dismissed. Aggrieved by the same, the present
civil revision petition.
3. The learned counsel for the petitioner would submit that the petitioner
has no objection in respect of the allotment of 1/5 th share in favour of each party.
Even according to the first respondent, the item No.7 of the suit schedule
property comprised in New Survey No.236/2 Old Survey No.256/11 is an extent
of ad-measuring 20 cents out of 45 cents. Accordingly, the preliminary decree
was passed whereas the Advocate Commissioner had wrongly mentioned the
extent of the property as 1.25 acres instead of 20 cents out of 45 cents.
Therefore, the total extent of the suit properties were wrongly calculated as
11.16 ¼ acres instead of 10.21 ¼ acres. The total suit property was valued at
Rs.36,28,500/- in which the Advocate Commissioner divided the properties as
five shares and the first respondent was allotted for 2.92 ½ acres as 1/5 th share.
The extent of item No.7 of the property was correctly mentioned, it would only
be 10.21 ¼ acres, in which the 1/5th share would be less than 2.92 ½ acres.
However, the Court below dismissed the application on the ground that the
petitioner failed to raise objections to the Advocate Commissioner's report and
had never raised this ground before this Court in Appeal Suit.
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CRP No.1297 of 2016
4. Per contra, the learned counsel for the first respondent would submit
that on receipt of the Advocate Commissioner's report, the petitioner failed to
raise any objections. In this regard, aggrieved by the same, the petitioner also
preferred an appeal in A.S.No.46 of 2002 and the same was also dismissed and
confirmed the final decree passed by the Court below. Therefore, by way of a
petition filed under Section 47 of CPC, the judgment and decree passed by this
Court cannot be upset. As per the final decree, the first respondent was allotted
1/5th share in respect of the item 2 to 16 of the suit schedule properties. The
value also equally divided into five shares. Accordingly, he was allotted item
Nos.2 to 16 in the suit schedule property. Further, the petitioner never raised
any objections on receipt of the Advocate Commissioner's report and did not
even raise any ground before this Court while challenging the final decree in
A.S.No.46 of 2002. Therefore, the Court below rightly dismissed the application
and it does not warrant any interference by this Court.
5. Heard the learned counsel appearing for the petitioners and the learned
counsel appearing for the first respondent and perused the materials available
on record.
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CRP No.1297 of 2016
6. Admittedly, the first respondent filed a suit for partition and the same
was decreed in O.S.No.49 of 1997. The preliminary decree was not challenged
by any of the parties. On the strength of the preliminary decree, the first
respondent filed an application in I.A.No.398 of 2000. In the final decree
application, an Advocate Commissioner was appointed and he filed his report
on 06.08.2001.
7. On perusal of Advocate Commissioner's report revealed that he had
wrongly mentioned the extent of the item No.7 of the suit schedule property as
1.25 acres instead of 20 cents out of 45 cents. There are totally 17 items in the
property he mentioned total extent as 11.16 ¼ acres and valued at
Rs.36,28,500/-. He divided the property into five shares and one share
equivalent to Rs.7,25,700/- and accordingly, the first respondent was allotted
item Nos.2 to 16 of the suit schedule properties. Though the petitioner failed to
raise any objections in this regard on receipt of the Advocate Commissioner's
report and failed to raise any grounds before this Court, he filed a petition under
Section 47 of CPC. The only objection raised was that in the Advocate
Commissioner's report there was discrepancies in respect of the item No.7 of the
property. He has no objection in respect of 1/5th share allotted to each party. If it
was rightly calculated as 20 cents out of 1.25 acres, the total extent of the
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CRP No.1297 of 2016
property would come to 10.21 ¼ acres. If the total extent is 10.21 ¼ acres, the
first respondent is entitled to have 1/5th share as 2.02 ¼ acres, whereas he was
allotted 2.92 ½ cents. Therefore, the other sharers will get less property though
they were allotted 1/5th share.
8. The learned counsel for the first respondent vehemently contented that
the petitioner having failed to raise objection on receipt of the Advocate
Commissioner's report and failed to raise any ground in the Appeal Suit filed
against the final decree, cannot raise a ground under Section 47 of CPC.
9. It is relevant to extract the provision under Section 47 of CPC as
follows;-
“ All the questions arising between the
parties to the suit, in which the decree was passed,
or their representatives, and relating to the
execution, discharge or satisfaction of the decree
have to be determined by the Court executing the
decree and not by a separate suit.”
Thus, it is clear that if the decree holder takes that in execution land not
included in the decree, or in excess of the decree, the judgment debtor must
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CRP No.1297 of 2016
invoke the provision under Section 47 of CPC for the recovery of such land, and
a separate suit for that purpose need not be filed.
10. Further, the Hon'ble Supreme Court of India held that in the case of
Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another
reported in (1973) 2 SCC 40, held that the executing Court cannot go behind
the decree under execution. But that does not mean that it has no duty to find
out the true effect of that decree. For construing a decree it can and in
appropriate cases, it ought to take into consideration the pleadings as well as the
proceedings leading up to the decree. In order to find out the meaning of the
words employed in a decree the Court often has to ascertain the circumstances
under which those words came to be used. That is the plain duty of the
execution Court and if that Court fails to discharge that duty it has plainly failed
to exercise the jurisdiction vested in it. The jurisdiction of execution Court does
not begin and end with merely looking at the decree as it is finally drafted.
Therefore, the execution Court can very well own to the decree.
11. Admittedly, the Advocate Commissioner had wrongly mentioned the
extent of land in respect of the item No.7 of the suit schedule property as 1.25
acres instead of 20 cents out of 45 cents. Therefore, the first respondent was
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CRP No.1297 of 2016
allotted more extent of the property though he was allotted 1/5 th share.
Therefore, this Court finds infirmity or illegality in the orders passed by the
Courts below and it is liable to be set aside.
12. Accordingly, the order passed by the Subordinate Judge, Panruti, in
E.A.No.33 of 2010 in E.P.No.55 of 2009 in O.S.No.49 of 1997 is hereby set
aside and the matter is remitted back to the execution Court for fresh
consideration in the line of observation made by this Court.
13. In the result, the civil revision petition stands allowed. The trial Court
is directed to dispose of the application within a period of two months from the
date of receipt of a copy of this order. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
03.01.2023
Speaking/Non-speaking order
Index : Yes/No
ata
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CRP No.1297 of 2016
G.K.ILANTHIRAIYAN.J,
ata
To
The Subordinate Judge, Punruti.
CRP.No.1297 of 2016
03.01.2023
https://www.mhc.tn.gov.in/judis
