Madras High Court
S.Kasturi vs Vadivelu on 7 June, 2023
C.M.A.(MD).No.199 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD).No.199 of 2021
S.Kasturi ... Appellant
Vs.
1.Vadivelu
2.Rengarajan
Lakshmiammal (died)
T.A.Nataraja Pillai (died)
T.A.Rethina Pillai (died)
Kowsalya @ Sarathammal (died)
3.R.Parvathavarthini
4.Mangalam
5.R.Vinoth
6.Kanagavalli
7.Selvi
8.Kamala ... Respondents
PRAYER: The Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of
C.P.C., against the judgment and decree dated 10.07.2020 passed in A.S.No.26
of 2019 on the file of the II Additional District cum Sessions Court, Thanjavur,
remanding by reversing the fair and decreetal order dated 29.01.2019 passed in
E.A.No.98 of 2017 in E.P.No.139 of 2012 in O.S.No.72 of 1981 on the file of
the Principal Sub Court, Thanjavur.
For Appellant : Mr.V.Meenakshi Sundaram
For RR1, 2, 7 & 8 : Mr.V.Chandrasekar
For RR3, 4, 5 & 6 : No appearance
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C.M.A.(MD).No.199 of 2021
JUDGMENT
This appeal has been filed challenging the order of the first appellate
Court setting aside the order of the execution Court, dismissing the application
filed under Order 21 Rule 97 and Section 151 of C.P.C.
2. The first appellate Court has remanded the matter to the trial Court,
after setting aside the judgment and decree, on the ground that the trial Court
has not gone into the validity of the Will said to have been executed by the
decree holder Nataraja Pillai, who was recognised as the legal representative of
the original decree holder viz., Lakshmi Ammal.
3. The facts which are necessary for disposal of this appeal are as
follows:
Originally, one Rathinavel has filed a suit for recovery of money in
O.S.No.72 of 1981. The said suit has been decreed by the trial Court.
Challenging the same, an appeal has been filed in A.S.No.885 of 1986 before
the Division Bench of this Court. This Court has allowed the counter claim of
the defendant and directed the plaintiff viz., Rathinavel to deliver the suit
property within a period of one month.
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C.M.A.(MD).No.199 of 2021
4. It is relevant to note that even during the pendency of the above
appeal before this Court, one Nataraja Pillai was impleaded as the legal
representative of the original defendant Lakshmi Ammal. This has been
accepted by this Court. After the decree, the said Nataraja Pillai has executed a
Will on 23.04.2001, in favour of the appellant. On the basis of the above Will,
the appellant has filed an application in I.A.No.336 of 2009 in O.S.No.72 of
1981 to implead herself as a legal representative in the pending execution
petition. It was allowed on 22.06.2010 and thereafter, she has filed an
application for execution of the decree granted by this Court. It is relevant to
note that the Rathinavel, the original judgment debtor had two wives one
Krishnaveni and Kousalya. The legal heirs of Rathinavel through first wife viz.,
sons and daughters and the legal heirs through second wife viz.,
Parvathavarthini and Mangalam have already filed applications under Section
47 of C.P.C., objecting the delivery. The above said applications were dismissed
and reached finality.
5. The appellant come on record as the legal representative of Nataraja
Pillai, on the basis of the Will, has filed an application in I.A.No.336 of 2009.
Before ordering the impleading application, the trial Court has decided the
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C.M.A.(MD).No.199 of 2021
validity of the Will. The appellant has examined P.W.1 / Tmt.Kanagavalli, who
is none other than the daughter of Nataraja Pillai and one of the attesting
witnesses. After finding that the Will was executed and attestation is proved,
the appellant was recognised as the legal representative of Nataraja Pillai.
6. It is relevant to note that when the above said application was filed,
some of the legal heirs of Rathinavel through the second wife also parties.
Despite their objections questioning the Will, the execution Court has allowed
the impleading petition. At this stage, an application has been filed by the
petitioners viz., Vadivelu and one Rangarajan, who are the grandsons of
Nataraja Pillai, challenging the Will once again, However, the execution Court,
considering the fact that since the decree is already operating against
Rathinavel and Nataraja Pillai already recognised as the legal representative of
the decree holder Lakshmi Ammal and finding that various similar applications
also filed by other legal representatives, rejected the contentions of the
applicants and ordered for delivery. Challenging the same, an appeal has been
filed. The first appellate Court has set aside the decree and judgment mainly on
the ground that there was no discussion as to the Will said to have been
executed by Nataraja Pillai.
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C.M.A.(MD).No.199 of 2021
7. Despite the names printed, none appeared for the respondents.
8. The learned counsel appearing for the appellant would submit that the
application for obstruction is one more attempt made by the legal heirs of
Nataraja Pillai. In fact, there is a dispute between the legal heirs through the
second wife and the legal heirs through the first wife of Rathinavel. Their
attempt to defeat the decree passed by the Court already reached finality.
However, now the respondents filed an application under Order 21 Rule 97 of
C.P.C., questioning the same Will, which was already recognised before the
Court. Therefore, the said applications are entertained and it is only to defeat
the rights of the parties, who had obtained the decree before the Court below.
Hence, the first appellate Court, without going into the merits of the case,
simply remanded the matter.
9. In the light of the above submissions, now the point for consideration
in this appeal is (i) Whether the first appellate Court is right in setting aside the
decree and judgment merely on the ground that the Will has not been
established, without going into the merits of the case?
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C.M.A.(MD).No.199 of 2021
10. As narrated above, it is not in dispute that the decree has been passed
by this Court in favour of one Lakshmi Ammal in A.S.No.885 of 1986 and even
during the pendency of the above appeal, one Nataraja Pillai was recognised as
legal representative of the said decree holder Lakshmi Ammal and the said
Nataraja Pillai has executed a Will in favour of the appellant. Thereafter, an
application has been filed by the appellant to implead herself in the main suit
and thereafter an execution petition also filed to implead herself as a party. The
said application in I.A.No.336 of 2009 was allowed on 22.06.2010. While
allowing the application, P.W.1, who is none other than the daughter of Nataraja
Pillai, was examined. Apart from that, P.W.2, attesting witness of the Will also
examined. The Will is a registered Will. At the relevant point of time, the legal
heirs of Rathinavel born through the second wife also contested the said Will.
11. Such being the position, once the Court has already determined the
question as to who was the legal representative of the decree holder, once again
the same question need not be gone into. Once the Will has already been proved
in the manner known to law and the appellant was recognised as the legal
representative of the decree holder, there need not be any roving enquiry once
again. From the nature of the applications filed by the other branch of the legal
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C.M.A.(MD).No.199 of 2021
heirs. It clearly indicate that in fact they tried to claim right over the immovable
property left by Nataraja Pillai. Such being the case, it is for them to establish
the right independently and they cannot prevent the execution of the decree.
This Court is of the view that remanding the matter to the trial Court once again
to decide the validity of the Will is nothing but re-agitate the mater, which was
already decided by the executing Court.
12. It is also relevant to note that the order of remand cannot be passed
mechanically and only the circumstances under Order 41 Rules 23 to 25 of
C.P.C., the order of remand can be passed. On perusal of the order of the trial
Court, this Court is of the view that the trial Court has captured all the other
applications filed by the legal heirs to defeat the very execution petition itself.
It is also to be noted that in the execution petition, delivery was ordered on
28.10.2015 and till date, the decree holder has not seen the fruits of the decree
and some attempts have been made by way of applications filed under Order 21
Rule 97 of C.P.C. All these things have not been considered by the first
appellate Court.
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C.M.A.(MD).No.199 of 2021
13. Such being the position, the very order of remand passed by the first
appellate Court dated 10.07.2020 in A.S.No.26 of 2019 is set aside and the first
appellate Court shall dispose of the appeal, on merits, within a period of two
months from the date of receipt of a copy of this order.
14. In the result, the Civil Miscellaneous Appeal is allowed. No costs.
07.06.2023
akv
To
1.The II Additional District cum Sessions Court,
Thanjavur.
2.The Principal Sub Court,
Thanjavur.
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C.M.A.(MD).No.199 of 2021
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).No.199 of 2021
07.06.2023
https://www.mhc.tn.gov.in/judis
