Madras High Court
S.Chinnasamy vs P.Kannan on 26 September, 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 24.09.2025 Order pronounced on : 26.09.2025
CORAM
THE HONOURABLE MR JUSTICE P.B. BALAJI
CRP.No.1261 of 2022
& CMP.No.6790 of 2022
S.Chinnasamy ... Petitioner
Vs.
P.Kannan ... Respondent
Prayer: Civil Revision Petition filed under Section 115 of CPC, to set aside
the order and decree dated 16.12.2021 passed in E.A.No.128 of 2019 in
E.A.No.16 of 2017 in E.P.No.54 of 2013 in O.S.No.519 of 2011 on the file
of the Principal Subordinate Judge, Tiruppur.
For Petitioner : Mr.K.Myilsamy
For Respondent : Mr.S.Dharani
ORDER
The decree holder, aggrieved by an order allowing an application
under Order VIII Rule 9 of the Code of Civil Procedure, permitting receipt
of additional pleadings in the Section 47 application filed by the judgment
debtor, has filed the instant Revision Petition.
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2.I have heard Mr.K.Myilsamy, learned counsel for the revision
Petitioner/decree holder and Mr.S.Dharani, learned counsel for the
Respondent/judgement debtor.
3.The learned counsel for the Petitioner would submit that the
Petitioner had laid the execution proceedings pursuant to the decree in his
favour and in the said execution petition, the Respondent had filed a petition
under Section 47 of CPC, questioning the executability of the decree.
Pending the said Section 47 application, an application filed by the
judgement debtor to raise additional pleadings was permitted by the
Executing Court, which order is now impugned in the present revision
petition.
4.Mr.K.Myilsamy, learned counsel for the Petitioner would state that
the Executing Court ought to have dismissed the application as one being
frivolous and vexatious. The additional grounds now sought to be projected
in the Section 47 petition by way of additional pleadings cannot be gone
into, leave alone tested by the Executing Court and therefore, there was
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absolutely no justification for the Executing Court entertaining the
application. He would also point out to the findings of the Executing Court
that the Respondent/judgement debtor had, in fact, failed to assign
satisfactory reasons and despite the same, proceeded to allow the
application imposing cost of Rs.3,000/- on the Respondent/judgement
debtor. He would therefore pray for the revision being allowed.
5.Per contra, Mr.S.Dharani, learned counsel for the
respondent/judgment debtor would submit that the Respondent had
purchased the property for a valuable sale consideration and he has also
been put into possession of the suit property. He would further contend that
his vendor did not contest the suit and the Respondent had come to know
that the Petitioner is a money lender and has been in the habit of lending
money, in respect of which transactions, he enters into agreements of sale
and only in order to bring to light all these relevant factors, the Respondent
intended to file additional pleadings to strengthen his Section 47
application. He would therefore state that the Executing Court having
exercised its discretion by allowing the application, no interference is
warranted in the instant Revision Petition.
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6.I have carefully considered the submissions advanced by the
learned counsel on either side. I have also gone through the pleadings and
the documents made available in the typed set of papers. I have also gone
through the order passed by the Executing Court, allowing the application
under Order VII Rule 9 of the Code of Civil Procedure.
7.Admittedly, the Petitioner filed O.S.No.519 of 2011 for specific
performance of an agreement of sale with the Defendant, one Poongodi. The
suit was decreed on 25.08.2012 and in order to execute the Decree, the
Petitioner launched execution proceedings in E.P.No.54 of 2013. The
Respondent claiming to be a purchaser of the suit property, for lawful
consideration under a registered sale deed, filed an application questioning
the executability of the decree, invoking Section 47 of the Code of Civil
Procedure.
8.It is the primordial contention of the Respondent that the
transaction between the Petitioner and the Respondent’s vendor was only a
loan transaction and the agreement of sale entered into between them was a
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nominal document, not intended to be acted upon as a sale transaction. The
Respondent has already filed a petition questioning the executability of the
decree and now the Respondent wants to add further pleadings, in and by
which, he wants to expose the habitual acts of the Petitioner in lending
money to third parties and getting agreements of sale executed from them.
These additional pleas, which ought to be taken as defence in the suit, have
now been permitted by the Executing Court
9.Firstly, it is to be borne in mind that it is settled legal position that
the Executing Court cannot go behind the decree. The additional pleas, that
are now sought to be introduced, are pleas which challenge or attack the
very nature of the suit transaction. These contentions should have been
raised by way of defence in the suit. After passing of the decree, it is not
open to the Defendant, or any person claiming under the Defendant, to
contend that the agreement of sale was only a loan transaction and there is
sufficient evidence available to establish the same. Having missed the bus
by not defending the suit, the vendor of the Respondent has lost all rights to
take such contentions in order to defeat the claim of specific performance.
The purchaser from the defendant, therefore, cannot be permitted to raise
such pleas, that too at the execution stage.
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10.The Executing Court ought to have dismissed the applicaiton
under Order VIII Rule 9 of CPC, instead of permitting receipt of additional
pleadings by imposition of cost on the Respondent. I find that the order of
the Executing Court is clearly perverse and improper and liable to be set
aside.
11.In fine, the Civil Revision Petition is allowed and the order dated
16.12.2021 in E.A.No.128 of 2019 in E.A.No.16 of 2017 in E.P.No.54 of
2013 in O.S.No.519 of 2011 on the file of the learned Principal Subordinate
Judge, Tiruppur, is set aside. There shall be no order as to costs. Connected
Civil Miscellaneous Petition is closed.
26.09.2025
Neutral Citation: Yes/No
Speaking Order/Non-speaking Order
Index : Yes / No
ata
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To
The Principal Subordinate Judge, Tiruppur.
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P.B. BALAJI,J.
ata
Pre-delivery order made in
26.09.2025
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