Madras High Court
V. Chokkalinga Chettiar (Deceased) vs R. Srinivasa Naidu (Deceased) on 11 August, 2016
RESERVED ON : 04.08.2016
DELIVERED ON :11.08.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2016
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(NPD)No.113 of 2011
and M.P.No.1 of 2011
1. V. Chokkalinga Chettiar (deceased)
2. C. Shanmuga Sundaram
3. C. Shantha
(petitioners 2 and 3 brought on record
as the legal representatives of the first
petitioner as per the order of the court
dated 19.11.2015 in MP No.1 of 2015
..... Petitioners
vs
1.R. Srinivasa Naidu (deceased)
2.S. Gunammal
3.S. Govardhanan
4.S. Bhaktavatchalu
5.S. Yohanathan
6.S. Anbu
7.B. Anusuya
8.G. Baby
(Respondents 2 to 8 brought on record
as the legal representatives of the first
respondent as per the order of the court
dated 08.03.2012 in MP No.2 of 2011
..... Respondents
Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order dated 25.10.2010 made in E.P.No.40 of 2009 in O.S.No.476 of 1996 on the file of District Munsif Court, Gudiyattam, Vellore District.
For petitioners : Mr.K.V. Ananthakrushnan
For R.2 to R.8 : Mr.D. Rajagopal
D1 : Died (steps taken)
ORDER
The above Civil Revision Petition arises against the order passed in E.P.No.40/2009 in O.S.No.476/1996 on the file of the District Munsif Court, Gudiyattam. The legal representatives of the deceased judgment debtors are the petitioners 2 and 3. The legal representatives of the deceased decree holders are the respondents 2 to 8.
2. The deceased first respondent/plaintiff viz.,R. Srinivasa Naidu filed a suit in O.S.No.476/1996 on the file of the District Munsif Court, Gudiyatham for declaration and injunction. The trial court decreed the suit and the defendant V. Chockalinga Chettiar filed an appeal in A.S.No.20/2005 on the file of Subordinate Court, Gudiyatham and the lower appellate court also confirmed the judgment and decree of the trial court and dismissed the appeal. Aggrieved by the same, the defendant preferred a Second Appeal before this Court in S.A.No.141/2007.
3. While decreeing the suit, the trial court held that the plaintiff had not purchased the share of the defendant in S.No.199 and he has purchased less than the remaining 1/3 share and therefore, having purchased it, he is entitled to the decree as prayed for.
4. This finding was also confirmed by the lower appellate court. This Court by its judgment dated 22.09.2008 disposed of the Second Appeal by passing a final decree by consent of both the parties by modifying the judgment and decree passed by the trial court.
5. This Court while disposing of the Second appeal in S.A.No.141/2007 took into consideration all these aspects and passed the final decree by consent of both the parties. Pursuant to the final decree granted in the Second Appeal, the defendant filed an Execution Petition in EP No.40/2009 and the executing court directed the defendant to take delivery of 22 cents which was allotted to him in the Second Appeal. In the execution petition, for effecting delivery, an Advocate Commissioner was appointed to inspect and divide the suit property. Against the order of appointing an Advocate Commissioner, the plaintiff preferred a Civil Revision Petition in CRP No.3095/2009 and this court by order dated 27.11.2009 dismissed the civil revision petition.
6. While dismissing the civil revision petition, this court directed the Advocate Commissioner to inspect the suit property and to identify the same with the help of the surveyor excluding the 43 cents, alleged to have been in possession of the plaintiff and to specify and demarcate the 22 cents to which the defendant is entitled and to submit a detailed report along with the plan before the executing court.
7. As per the directions given by this court, the Advocate Commissioner inspected the property and filed his report excluding the 43 cents, which is in possession of the plaintiff and allotted 22 cents to the defendant in S.F.No.199/2-extent 159.0 sq.mts; 62.5 sq.mts in S.F.No.199/4; 182.0 sq.mts in S.F.No.199/5; 13.05 sq.mts in S.No.199/6; 130.5 sq.mts in S.F.No.199/8 and 203.0 sq.mts in S.F No.199/9, in all, 894 sq.mts. Even at the time of inspection of the Advocate Commissioner, the defendant and his counsel were not present. However, the defendant filed his objection stating that the allotment was not done as per the decree in S.A.No.141/2007.
8. Mr.K.V. Ananthakrushnan, the learned counsel appearing for the petitioner/defendant submitted that the Division was not done in accordance with the judgment and final decree passed in the Second Appeal in S.A.No.141/2007. The learned counsel further submitted that the extent of 22 cents was not allotted to the defendant in a single lot and it has been allotted in a scattered manner. In support of his contention, the learned counsel relied on the following judgments:
(i) 1973(2) SCC 40 (Bhavan Vaja and Others vs Solanki Hanuji Khodaji Mansang and another), wherein the Hon'ble Supreme Court has held as follows:
19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.
(ii) AIR 1967 SC 1193 (M.P Shreevastava vs Mrs.Veena), wherein the Hon'ble Supreme Court has held as follows:
It also appears, from the terms of cl. (3) of O. 21 r. 2, that the prohibition is against the Court executing the decree. But there is no warrant for the argument that the expression "Court executing the decree" as used in s. 47 C.P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise.
(iii) 2007(1) CTC 217 (Madaswamy vs Govindaraj), wherein this Court held as follows:
16. It appears from para-7 of its Order that only with reference to the Amin's return, the Executing Court came to the conclusion that the amended construction existed in the lane even prior to the suit and the Executing Court proceeded on the premise that the wall existed even before the suit and when the Decree-Holder had not taken steps for amending the plaint, it did not think it proper to Order removal of superstructure. On the proposition regarding permissibility of removal of illegal or unlawful construction made pendente lite by the Executing Court, we may refer to the decision of the Supreme Court in 1996 (1) LW 145 [B. Gangadhar v. B.G. Rajalingam]. In the said case also, the Bailiff returned the warrant of delivery of possession on the ground that the Judgment-Debtor/Tenant had constructed shops and inducted Tenants into possession and therefore, he could not execute the warrant. After enquriy, the Executing Court directed the Bailiff by warrant to demolish shops and deliver vacant possession to the Decree-Holder. The Petitioner challenged the Order in revision, but was unsuccessful. In the Special Leave Petition preferred before the Supreme Court, holding that the Executing Court is mandated to decide all questions relating to right, title or interest in the property in the execution proceedings and that Executing Court would further be justified to Order removal of unlawful construction made pendente lite, the Supreme Court has held thus:
7.The Executing Court, therefore, would be justified to order its removal of unlawful or illegal construction made pendente lite so that the Decree for possession or eviction, as the case may be, is effectually and completely executed and the delivery of possession is given to the Decree-Holder expeditiously. Admittedly, pending suit the Petitioner had constructed shops and inducted Tenants in possession without permission of the Court. The only course would be to decide the dispute in the execution proceedings and not by a separate suit.
8. Order 21, Rule 35(3) envisages that:
Rule 35(3) of Order 21 itself manifests that when a Decree for possession of immovable property was granted and delivery of possession was directed to be done, the Court executing the Decree is entitled to pass such incidental, ancillary or necessary orders for effective enforcement of the Decree for possession. That power also includes the power to remove any obstruction or superstructure made pendente lite. The exercise of incidental, ancillary and inherent power is consequential to deliver possession of the property in execution of the Decree. No doubt, the Decree does not contain a mandatory injunction for demolition. But, when the Decree for possession had become final and the Judgment-Debtor or a person interested or claiming right through the Judgment-Debtor has taken law in his hands and made any constructions on the property pending suit,t he Decree-Holder is not bound by any such construction. The relief of mandatory injunction, therefore, is consequential to or necessary for effectuation of the Decree for possession. It is not necessary to file a separate suit when the construction was made pending suit without permission of the Court. Otherwise, the Decree becomes inexecutable driving the Plaintiff again for another round of litigation which the Code expressly prohibits such multiplicity of proceedings.
(iv) 1982 WLN 603 (Jugal Kishore vs Deonarayan), wherein the Rajasthan High Court held as follows:
10. ..... On a due consideration of the mattter, am of the view that the latter decision of this Court in Dhanarajagerji v. Parthasarthy lays down the correct principle and the earlier decision in Ram Shettithi v. Maniappa Shettithi 32 Ind Cas 520 : AIR 1917 Mad 79, I cannot be taken to lay down correctly the law on the point. On the passing of a decree for the possession of the property, the judgment-debtor is under liability to hand over possession of the property as it was on the date of the decree. If at the time of the date of the decree. If at the time of the delivery it is found that the property decreed has depreciated in value by the positive and wilful conduct of the judgment debtor then the question how far the judgment-debtor will be liable for causing such depreciation in the value of the property can be dealt with as an issue arising in execution, as it falls within the scope of the expression "discharge or satisfaction of the decree'. I am, therefore, of the view that the lower appellate court is not right in holding that the respondent's application claiming damages is not maintainable under Section 47.
9. Countering the submissions made by the learned counsel for the petitioner, Mr.D. Rajagopal, learned counsel appearing for the respondents 2 to 8, submitted that the final decree passed by this Court in the Second Appeal would clearly establish that the order passed by the executing court is just and proper. Further, the learned counsel submitted that the executing court is bound by the decree passed by this Court in the Second Appeal and therefore, the executing court cannot go beyond the decree and modify the same. In support of his contention, the learned counsel relied on a judgment reported in AIR 2004 SC 904 (Ravinder Kaur vs Ashok Kumar and another), wherein the Hon'ble Supreme Court has held as follows:
This opinion of the High Court, in our considered view, is wholly erroneous for more than one reason. The objection that the learned Judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. As noted earlier this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted herein above. At the cost of repetition, we must re-state that this question of identity of the property was never again raised in the appeal before the appellate authority, in the revision before the revisional authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be re- agitated in the execution proceeding by the tenants. It is also to be noticed that the executing court has rightly observed that re- opening of this issue would amount to asking that court to go behind the decree which is impermissible in law. We must note this finding of the executing court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the co-ordinate bench of the same High Court in the dismissal order made in C.R.P.No.5175/2002 on 29.10.2002 which while rejecting the similar contention of the respondents had specifically observed the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it. We also must notice that the High Court in the impugned order has made an observation which in effect, in our opinion, makes the execution proceedings liable to be dismissed. The said observation is as follow: "In the present case, it is proved on the record that the shop regarding which the decree- holder was seeking possession during execution proceedings was not the one regarding which the ejectment order had been passed by the Rent Controller. Neither the description had tallied nor the boundaries tallied."
10. I have carefully considered the materials available on record and the submissions made by the learned counsel on either side and the judgments relied on by the learned counsel on either side.
11. It could be seen that the Execution Petition has been filed by the defendant based on the Final decree passed by this Court in S.A.No.141/2007. This Court had categorically taken into consideration the schedule of property mentioned in the plaint and also in the auction sale notice. In so far as the suit item is concerned, the shares of the parties were apportioned as follows:
The respondent's share of 2/3 in 0.65 acres in Survey No.199 is declared with regard to the property described as follows:
To the south of the property belonging to Ranganatha Naidu, bounded on the north by Puskanoor Amman Koil Chatram, bounded on the west by Punganoor Amman Koil Street, on the east by Nathamuni Pandaram Patta Jagadha and he is entitled to an injunction for 0.43 cents alone.
2. As regard the remaining 22 cents, the title of the share of the appellant has already been given to the appellant and he is entitled to take possession.
12. In the plaint, filed in O.S.No.476/1996, the schedule of property has been described as follows:
In N.A.A. District, Gudiyatham Taluk in Gudiyatham town, Poonganoor Amman Koil Street in Chunnambupet, M.W No.III:
1. T.S.No.199/1 0.00.5
2. T.S.No.199/3 0.02.0
3. T.S.No.199/7 0.13.5 in all 0.16.0 Eare and a terraced house in T.S.No.199/3 being D.No.15 with vacant site North of Rangasamy Naidu's vacant site and the defendant, south of Poonganoor amman Koil lane wast of Ponganoor Amman Koil Street west or Vagaira land within this boundary.
13. In the auction sale held on 17.4.1972, under which, the plaintiff claimed title, the property was described as follows:
eh/M/o/ Foahj;jk; rg;o nrh;e;j Foahj;jk; lt[d; 1. 2 gpujpthjpfSf;Fg; ghj;jpag;gl;L nkw;goahsh;fspd; RthjPd mDgtj;jpy; ,Ue;J tUk; lt[d; rh;nt be/199 Vf;fh; 0/65f;F jPh;it U:/169 ,jpy; thjp (u';frhkp eha[L) kidf;F tlf;F g[!;fDhh; mk;kd; nfhtpy; rj;jpuj;Jf;F bjw;F nkw;go g[';fDhh; mk;kd; nfhapy; bjU[t[f;f fpHf;F ehjKdp gz;lhuk; gl;lh $hfht[f;F nkw;F ,jd; kj;jpapy; 0/43f;F jPh;it U:/150 ,e;j tp!;jPuzk; cs;s epyk; Vyf;fpuhkk; U:gha; 1610/-.
14. In the final decree, the proceeding under which the appellant claimed the right, he has been granted the exclusive right in respect of the property, the decree runs as follows:
that the plaintiff is entitled to 1/3 share in the house described as items 3, 5 and the house sites described as item No.6 in the plaint B schedule.
15. Item No.6 of the B schedule property is the house site in T.S.No.199, measuring an extent of 0.65 cents T.S.No.201 extent of 0.11 cents value of Rs.1000/- at Punganoor Amman Koil Street, Chunampet, Gudiyattam. After the final decree, T.S.No.199 has been sub divided and the 1/3 share was declared as belonging to the defendant (i.e.,) an extent of approximately 22 cents out of 66 cents in S.No.199. As seen from sale certificate, the plaintiff is entitled to 43 cents. The 43 cents, to which, the respondent claims title added to 22 cents in respect of which, the defendant's share was declared comes to 65 cents which is total extent of T.S.No.199.
16. When this Court had allotted 22 cents of land to the defendant, he cannot now take a different stand in the execution petition. That apart, this Court in C.R.P.No.3095 of 2009 has also given direction to the Advocate Commissioner to measure the suit property. The ratio laid down in the judgment reported in AIR 2004 SC 904 (Ravinder Kaur vs Ashok Kumar and another) applies to the facts and circumstances of the present case, since it is a settled position that the Executing Court cannot go beyond the decree. The order passed by the executing court is just and proper. Since the judgments relied upon by the learned counsel for the petitioners are relating to the application, filed under Order 47 of the Civil Procedure Code, those judgments cannot be applied to the present case for the reason that the present Civil Revision Petition has been filed against the order passed in the execution petition and not in an application, filed under Sec.47 of the Civil Procedure Code.
17. The Executing Court cannot give a different meaning for the final decree passed by this court in the Second Appeal. In these circumstances, the order passed by the Executing Court is just and proper and I do not find any error or infirmity in the order passed by the Executing Court and the Civil Revision Petition is devoid of merits and the same is dismissed. No costs. Consequently, connected MP is closed.
11-08-2016 sr Index:no website:yes To The District Munsif Court, Gudiyattam, Vellore District.
M. DURAISWAMY,J., sr Pre-Delivery Order in C.R.P.(NPD)No. 113 of 2011 and M.P.No.1 of 2011 11-08-2016