Madras High Court
M.Palani vs Malliga on 14 September, 2023
C.R.P.(NPD)Nos.376 & 2923 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)Nos.376 & 2923 of 2017
and CMP.Nos.13786 & 1655 of 2017 & 11878 of 2018
M.Palani ... Petitioner in both CRPs
Vs.
Muniammal (Deceased)
1.Malliga
2.Kanchana
3.V.Sathish Kumar ... Respondents in both CRPs
PRAYER in CRP(NPD)No.376 of 2017: Civil Revision Petition is filed
under Section 115 of the Code of Civil Procedure, against the fair order
and decreetal order of the Learned IX Asst. City Civil Judge, Chennai
made in E.A.No.6307 of 2015 in I.A.No.20884 of 2000 in O.S.No.5497
of 1996 dated 01.10.2015.
PRAYER in CRP(NPD)No.2923 of 2017: Civil Revision Petition is
filed under Section 115 of the Code of Civil Procedure, against the Order
and Decreetal Order of the Learned IX Asst. City Civil Judge, Chennai
made in E.P.No.221 of 2016 in I.A.No.20884 of 2000 in O.S.No.5497 of
1996 dated 17.06.2017.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
(In both CRPs)
For Petitioner : Mr.B.Dineshkumar
For Respondents : Mr.B.Ganeshamoorthy (for R1)
Mr.B.K.Sreenivasan (for R2 & R3)
COMMON ORDER
As the issue involved in both the revisions in CRP.Nos.376 of
2017 and 2923 of 2017 are common, they are taken up for disposal
together.
2.A suit for partition was presented in O.S.No.5497 of 1996. The
mother and two daughters were arrayed on one side and the son on the
other. The suit property fell for partition on account of the death of the
father Mari Naicker. The plaintiffs claimed 1/4th share each. The suit was
decreed by judgment and decree dated 15.02.2000. As per the decree,
each of the plaintiffs were given 1/4th share and the defendant was given
1/4th share. In order to divide the property, an Advocate Commissioner
had been appointed in I.A.No.20884 of 2000. Final decree was also
passed. Apart from that, the claim of the plaintiffs for mesne profits was
also decreed.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
3.The first plaintiff Muniammal sensing her days on this transitory
world was coming to an end, executed a settlement deed in favour of her
grandson i.e., the son of the 3rd plaintiff. In terms of the settlement deed,
she retained life interest and the vested remainder went to the 3rd
respondent. Muniammal executed the settlement deed on 29.05.2013 and
passed away on 24.04.2014.
4.On 05.11.2014, the settlee from the first plaintiff Muniammal,
namely, Mr.V.Sathish Kumar filed an application in E.A.No.6307 of 2014
under Order 21 Rule 16. The purpose of this application was to implead
him as the 3rd decree holder to the execution proceedings. This was
resisted by the civil revision petitioner/judgment debtor on the ground
that Mr.V.Sathish Kumar cannot claim the right of mesne profits which
had been decreed, since what was settled in his favour was only the
undivided share in the property and the mesne profits had not been
specifically assigned.
5.It was further argued that Mr.V.Sathish Kumar would get the
property only on the death of Muniammal and therefore, he cannot stake
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
a claim to the property.
6.The learned Executing Court held in EA.No.6307 of 2014, (the
application filed under Order 21 Rule 16 of the CPC) that the question of
entitlement of mesne profits can be decided only in the Execution
Petition and that by impleading Mr.V.Sathish Kumar as a party decree
holder, it would not affect the right of the judgment debtor. Challenging
this order in E.A.No.6307 of 2014, CRP.No.376 of 2017 has been
presented.
7.When the main Execution Petition was taken up, on finding that
the judgment debtor had not paid the share of the mesne profits, the
Court attached the property allotted to the plaintiff in the suit. Aggrieved
by the order of attachment, CRP.No.2923 of 2017 has been presented.
8.I heard Mr.B.Dinesh Kumar, learned counsel appearing for the
petitioner, Mr.B.Ganeshamoorthy, learned counsel for the 1st respondent
and Mr.B.K.Sreenivasan, learned counsel appearing for the respondents 2
and 3. I have gone through the records and I have perused the order
which has been impugned in both the matters.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
9.The decision that I have to take is whether Muniammal's legal
representative can execute the decree which had been obtained by her.
The solution lies in a bare reading of Section 146 of the CPC. As per
Section 146, a person who is a legal representative of the deceased is
entitled to execute the decree on behalf of a deceased decree holder. This
proposition is no longer res integra and has been settled by the Supreme
Court in Vaishno Devi Construction v. Union of India and others
reported in 2022 (2) SCC 290.
10.Interpreting Section 146, the Supreme Court has held that a
legal representative of a deceased is entitled to come on record, not only
by virtue of Order 21 Rule 16 of CPC, but also in terms of Section 146.
11.Applying the said principle to the case at hand, Sathish Kumar
the 3rd respondent is not claiming any personal right over the property,
but by virtue of the settlement deed dated 29.05.2013, is only
representing the estate of the deceased Muniammal before the Court.
12.The definition of a legal representative under Section 2(11) is
so wide that it even includes an inter meddler of a property. Fortunately,
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
Mr.V.Sathish Kumar the 3rd respondent is not an inter meddler, but a
person claiming by virtue of a registered settlement deed executed by the
deceased first decree holder on 29.05.2013.
13.By virtue of the definition under Section 2(11) of the CPC,
Mr.V.Sathish Kumar represents the estate of the deceased Muniammal. In
such capacity, whatever proceedings initiated for the purpose of mesne
profits would go only in discharge of the decree vested in the estate of
the deceased Muniammal.
14.The position of law being settled, a combined reading of
Section 2(11), Section 146 and Order 21 Rule 16 of the CPC, forces me
to come to the conclusion, that Mr.V.Sathish Kumar is entitled to execute
the decree. Consequently, the order impugned in CRP.No.376 of 2017
has to be upheld.
15.At this stage, Mr.B.Dinesh Kumar, learned counsel for the
petitioner submits that he has deposited 50% of the amount as per the
directions given by this Court on 22.08.2017. Mr.B.K.Sreenivasan states
that the amount has also been withdrawn by the respondents 1 and 2.
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C.R.P.(NPD)Nos.376 & 2923 of 2017
16.Mr.Dinesh Kumar would request time be granted in order to
settle the remaining amount. Accordingly eight (8) weeks time is granted
to Mr.M.Palani/civil revision petitioner to pay the remaining amount
directly to respondents 1 to 3, the remaining amount of mesne profits in
the ratio of 1/3rd each. Mr.V.Sathish Kumar is permitted to withdraw the
amount deposited by Mr.M.Palani to the credit of E.P.No.221 of 2016 by
filing an appropriate application. The attachment that has been passed by
the Executing Court on 17.06.2017 will stand raised on proof of payment
of the remaining balance of 50%.
17.In fine, CRP.No,376 of 2017 stands dismissed. CRP.No.2923 of
2017 stands disposed of. No costs. Consequently, connected
miscellaneous petitions are closed.
14.09.2023
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
vs
To
The IX Assistant City Civil Court,
Chennai.
V.LAKSHMINARAYANAN,J.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)Nos.376 & 2923 of 2017
vs
C.R.P.(NPD)Nos.376 & 2923 of 2017
and CMP.Nos.13786 & 1655 of 2017 & 11878 of 2018
14.09.2023
https://www.mhc.tn.gov.in/judis
