Madras High Court
K.Shanmughavel vs D.Radhammal on 23 March, 2023
C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2023
CORAM:
MR.JUSTICE N.SESHASAYEE
C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
K.Shanmughavel .. Petitioner
Versus
D.Radhammal .. Respondent
Prayer: Petition filed under Article 227 of the Constitution of India, seeking
to set aside the Order dated 13.05.2015 made in I.A.No.108/2014 in
O.S.No.642/2012 on the file of the IV Additional District and Sessions
Judge, Coimbatore.
For Petitioner : Mr.S.Mukunth, Senior Counsel
for M/s.Sarvabhauman Associates
For Respondents : Mr.G.Rajagopalan, Senior Counsel
for Mr.P.Thiagarajan, R1 & R2
ORDER
The first defendant in O.S.No.642 of 2012 has approached this Court in the
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
present revision challenging the order passed in I.A.No.108 of 2014,
dismissing his application for rejection of plaint under Order VII Rule 11(d)
of CPC.,
2. The minimum facts that are required for the present are as below :
● The first plaintiff was the owner of Item-I of the suit property and
the second plaintiff was the owner of Item-II of suit property, and
that they are husband and wife. They together constituted the
second defendant as their Power of Attorney.
● On 09.4.2001 and 10.04.2001, the second defendant, as the Power
of Attorney respectively of plaintiffs 1 and 2, sold items 1 and 2
properties respectively to the first defendant. Years rolled by, the
plaintiffs would now institute a suit for recovery of possession of
the suit property in 2012.
● The first defendant would now take out an application in
I.A.No.108 of 2014 for rejection of plaint on the ground that the
plaintiffs ought to have sought cancellation of the sale deeds
dated 09.04.2001 and 10.04.2001, but if only they had to seek the
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
same, that should have been done latest by 09.04.2004 and
10.04.2004. Since they missed the bus then, they have come
forward with a suit for recovery of possession based on title, to
bring the suit within limitation.
● This application was contested by the plaintiffs and the trial Court
found that this is a issue fit for trial, since the issue of limitation is
a mixed question of law and fact, hence, the revision by the first
defendant.
3. Heard Mr.S.Mukunth, learned Senior Counsel for the first defendant /
revision petitioner.
4. The learned counsel submitted that :
● While generally limitation is considered as a mixed question of
law and fact, yet it has to be understood in the context whether
any finding on fact is required for considering the plea of
limitation, but not when certain facts are admitted or cannot be
disputed.
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
● In the context of the case, the significant dates are 09.04.2001 and
10.04.2001. Inasmuch as these sale deeds are executed by the
Power of Attorney of the plaintiffs, these sale deeds would bind
the plaintiffs and has to be construed as if they had executed the
same. Therefore, the duty is cast on them to seek cancellation of
these sale deeds or any other similar remedy which may have a
similar effect before seeking the remedy for possession.
● It is an admitted fact that the plaintiffs cannot lay the suit for
cancellation of sale deeds beyond the period of three years. By an
ingenious method, the plaintiffs couched the relief as one for
recovery of property, wherein they would require the trial Court to
investigate on the legal validity of the sale deeds executed in
favour of the first defendant. But inasmuch as the plaintiffs are
bound by the sale deeds referred to above, without seeking
cancellation, they cannot sustain a suit for recovery of possession.
5. Per contra, Mr.G.Rajagopalan, learned Senior Counsel appearing for the
respondents/plaintiffs submitted that the present suit cannot be read in
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
isolation and it has to be understood in the context of the Common Order
dated 06.08.2010 passed by this Court in CMA No.3184 of 2008 and
connected CRP Nos. 3521 of 2008 and 1414 of 2009.
6. Providing the backdrop for the present suit, the learned Senior Counsel
submitted that the plaintiff Mr.C.K.Shanmugam has a brother by name
Mr.Manickam. This Manickam had borrowed a sum of Rs. 6.5 lakhs from
the first defendant for which, the plaintiff had executed a promissory note
dated 08.09.1999 along with that, the original title deeds of the properties
were also entrusted with the first defendant. Besides, the plaintiffs also
executed a Joint Power of Attorney in favour of the second defendant, who
is none other than the sister of the first defendant. Now, on the strength of
this Joint Power of Attorney, the second defendant had sold the property to
the first defendant and subsequently, the first defendant had sold the portion
of the property, so-purchased, to the third defendant. The property sold to
the third defendant by the first defendant is described as Item No. II in the
plaint.
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
7. In the meantime, the first defendant had instituted a suit in O.S. No. 1109
of 2002 on the file of Sub-Judge, Coimbatore, which was later transferred to
FTC-III, Coimbatore, wherein, it was taken on record as O.S.No.225 of
2003 for realising the money due on the promissory note dated 08.09.1999
against the present plaintiffs. In that suit, the present plaintiff as defendant
pleaded about the borrowings made by Mr.Manickam etc., Ultimately that
suit came to be decreed by the Trial Court. The plaintiffs had thereafter laid
E.P.No.61 of 2008 for executing the money decreed that they had obtained
in O.S.No. 225 of 2003. The Execution Court had ordered sale of the
property. At that time, the present plaintiffs had taken up E.A.No.18 of 2011
for adjourning the same under Order 21 Rule 83 of CPC.
8. At that point of time, the first defendant/decree holder in O.S.No.225 of
2003 made a statement before the Court that by sale of the property, vis-a-
vis the power of attorney executed in favour of the second defendant, the
decree holder had realised the decretal amount and accordingly that
Execution Petition was terminated.
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
9. Taken aback by this move of the decree holder, the present plaintiff as
defendant challenged the same in CMA No.3184 of 2008 along with CRP
Nos. 3521 of 2008 and 1414 of 2009 that came to be disposed of by this
Court by order dated 06.08.2010, wherein, this Court found that there is no
prima facie illegality in the order of the execution Court warranting
interference, but, granted leave to the plaintiffs to institute a separate suit for
preserving its right.
10. In the meantime, the first defendant had settled the property purchased
through the Power of Attorney of the plaintiffs and the same was in
challenge in CMA No.3184 of 2008 and connected CRP Nos. 3521 of 2008
and 1414 of 2009 and that came to be disposed of by this Court vide its
Order dated 06.08.2010. Upholding the said transfer by settlement of
documents, this Court had held as follows:
"...20. Following the principles laid down in the said
decisions relied on by the learned Counsel for the Respondent,
I do not find any infirmity in the orders passed by the
Executing Court while dismissing the Applications filed by the
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
Revision Petitioner since the sale of Goundapalayam property
is a different transaction. Even if the Revision Petition feels
that the Respondent/decree holder had gained benefit out the
sale consideration, they are at liberty to file a Suit for recovery
of the said amount and the said transaction cannot be agitated
in the present proceedings. Under such circumstances, both the
Revision Petitions are bereft of merits and are bound to fail."
11. However, subsequently, pending E.P.No.61 of 2008, the Judgment
Debtor therein (petitioner herein) had taken out E.A.No.18 of 2021 seeking
adjournment of the sale order by the Court.
12. The learned counsel added that in the plaint the plaintiffs had taken out
an alternative prayer for payment of compensation for half share of the
property.
13. Per contra, responding to the same, Mr.Mukund, learned Senior Counsel
for the revision petitioner submitted that the Order passed in CMA No.3184
of 2008 along with CRP Nos. 3521 of 2008 and 1414 of 2009 must be
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
understood in the context in which was made. In the judgment in
O.S No. 225 of 2003, which is made available in the additional typedset of
papers of the respondent, nowhere, the plaintiffs have pleaded anything
about the Power of Attorney dated 27.01.1999 given to the second
defendant.
14. After carefully weighing the rival submissions, this Court finds that the
facts are intertwined and they cannot be picked up for consideration in
isolation. It will, therefore, be appropriate that the entire matter is tried and
adjudicated by the Court. The Revision Petitioner/Defendant will have all
the right to press into service all the contentions that they have taken which
may include the right to file any written statement, if so required.
15. Since, the suit is into its 11th year of its institution, this Court requires
the trial Court to expedite the process of the Trial and dispose of the same at
the very earliest.
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C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
16. In conclusion, this Revision is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
23.03.2023
Index: Yes/No
Internet : Yes/No
dhk
https://www.mhc.tn.gov.in/judis
C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
N. SESHASAYEE, J.
dhk
Copy to:
1. The Presiding Officer,
The IV Additional District and Sessions Judge,
Coimbatore.
C.R.P.No.2545 of 2015
and M.P.No.1 of 2015
23.03.2023
https://www.mhc.tn.gov.in/judis
