Unknown vs Sivaprakasam
2023 Latest Caselaw 183 Mad

                                                                                  CRP.No.716 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 04.01.2023

                                                      CORAM:

                              THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                              CRP.No.716 of 2017 and
                                               CMP.No.3613 of 2017

                Ramachandran(died)
                1.Pavunambal
                2.Karpagam
                3.Ramadevi
                4.Rohini
                5.Kathiravan
                6.Komala
                (amended as per order in
                EA.No.139 of 2016)                                           ... petitioners
                                                          Vs.
                1.Sivaprakasam
                2.Bobby Ammal                                                      ... Respondents

                PRAYER: Civil Revision Petition filed under Section 115 of CPC to set aside the
                fair and decretal order in EA.No.145 of 2006 in EP.No.303 of 2004 in OS.No.720
                of 1988 dated 15.11.2016 on the file of the Principal District Munsif, Cuddalore
                and thereby allow the civil revision petition.

                                     For Petitioners : Mr.R.Rajavelavan

                                     For Respondents
                                           For R1 : Mr.D.Ravichander

                                           For R2     : M/s.P.Veena Suresh



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                                                                                    CRP.No.716 of 2017

                                                         ORDER

This civil revision petition has been filed to set aside the fair and

decretal order in EA.No.145 of 2006 in EP.No.303 of 2004 in OS.No.720 of 1988

dated 15.11.2016 on the file of the Principal District Munsif, Cuddalore, thereby

dismissed the application seeking dismissal of the execution petition.

2. Heard, the learned counsel for the petitioners, the learned counsel

for the first respondent and the learned counsel for the second respondent.

3. The petitioners are the legal heirs of the judgment debtor.

Originally the suit property was owned by one, Angamuthu Ammal. She filed

suit for declaration and recovery of possession in OS.No.720 of 1988 as against

one, Ramachandran. The said suit was decreed by the judgment and decree

dated 10.06.1992. Aggrieved by the same, appeal suit was filed and the same

was also dismissed and the same was confirmed by this Court in SA.No.1068 of

1993 by the judgment and decree dated 11.03.2004. In pursuant to the decree,

an execution petition was filed to execute the decree passed in OS.No.720 of

1988. The said suit was filed by her power of attorney i.e. the first respondent

herein. The power of attorney filed execution petition in EP.No.303 of 2004 in

order to execute the decree of recovery of possession from the said

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CRP.No.716 of 2017

Ramachandran / judgment debtor. While pending the execution petition, the

judgment debtor purchased the suit property from the principal i.e. Angamuthu

Ammal by the registered sale deed dated 22.02.2006. After the purchase, the

principal i.e. Angamuthu Ammal issued legal notice on 27.02.2006 against the

first respondent herein, thereby cancelled the power of attorney executed by her

in respect of the suit property. After purchase of the suit property, the judgment

debtor died and the petitioners have been impleaded as respondents in the

execution petition.

4. Once again, the said Angamuthu Ammal executed another sale

deed in favour of the second respondent herein who is none other than the

daughter of the first respondent herein by the sale deed dated 21.02.2006.

However, it was registered only on 08.03.2006. It was executed one day prior to

the sale deed executed in favour of the judgment debtor on 22.02.2006. On the

strength of the sale deed, the second respondent filed petition to implead herself

in the execution petition. It was allowed by the execution court. In the said

scenario, the petitioners filed application to dismiss the execution petition in

EA.No.145 of 2006 on the ground that the power holder cannot maintain

execution petition since the principal herself executed sale deed in favour of the

judgment debtor. Subsequently, the principal had issued notice to the power https://www.mhc.tn.gov.in/judis

CRP.No.716 of 2017

holder and thereby cancelled the power of attorney by the legal notice dated

27.02.2006. While pending the EA, the second respondent herein was

impleaded as the second petitioner in the execution petition by herself on the

ground that the subject property was purchased by her from the principal i.e.

Angamuthu Ammal by the registered sale deed dated 21.02.2006. It was

dismissed on the ground that it is unbelievable that the said Angamuthu Ammal

executed sale deed on 22.02.2006 in favour of the judgment debtor by

comparison of thumb impression. Admittedly the petitioners are in possession

and enjoyment of the suit schedule property. Therefore, his principal i.e.

Angamuthu Ammal through the power of attorney filed suit for declaration and

recovery of possession in her favour.

5. When the judgment debtor suffered decree of declaration and

recovery of possession, he intended to purchase the suit property and

accordingly, he purchased the suit property from the said Angamuthu Ammal by

the registered sale deed dated 22.02.2006. Now the second respondent has also

purchased by the sale deed dated 21.02.2006. The said Angamuthu Ammal

executed sale deed in her favour on 21.02.2006 and the same was registered

only on 08.03.2006. Now the first respondent herein also died who filed

execution petition on behalf of his principal. The principal i.e. Angamuthu https://www.mhc.tn.gov.in/judis

CRP.No.716 of 2017

Ammal also died long back on 27.02.2007. Therefore, the power holder cannot

maintain the execution petition since the principal herself died.

6. Now the only point for consideration is that whether the

subsequent purchaser i.e. the second respondent herein can maintain the

execution petition or not. Admittedly, the judgment debtor purchased the

property by the sale deed dated 22.02.2006 executed by the principal i.e.

Angamuthu Ammal and they are in possession and enjoyment of the suit

schedule property. At the same time, the second petitioner also purchased by the

sale deed dated 21.02.2006 which was registered on 08.03.2006 executed by

the same Angamuthu Ammal in respect of the suit schedule property. However,

the second respondent without any possession of the suit property, simply she

purchased and sale deed was executed in her favour while the first respondent

and his principal were alive. Therefore, the second respondent also cannot

maintain the execution petition to execute the decree passed in OS.No.720 of

1988.

7. In view of the above, the fair and decretal order in EA.No.145 of

2006 in EP.No.303 of 2004 in OS.No.720 of 1988 dated 15.11.2016 on the file of

the Principal District Munsif, Cuddalore is set aside and this civil revision petition https://www.mhc.tn.gov.in/judis

CRP.No.716 of 2017

is allowed. Accordingly, the execution petition in EP.No.303 of 2004 is hereby

dismissed. It is made clear that in respect of the title over the property, the second

respondent is at liberty to agitate the issue separately in the manner known to law, if

so advised. Consequently, connected miscellaneous petition is closed. There shall

be no order as to costs.

04.01.2023 Speaking/non-speaking Index : Yes/No Internet : Yes lok

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CRP.No.716 of 2017

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CRP.No.716 of 2017

G.K.ILANTHIRAIYAN, J.

lok

To The Principal District Munsif, Cuddalore

CRP.No.716 of 2017

04.01.2023

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