Madras High Court
R. Radha vs B. Saraswathy on 24 March, 2005
Author: T.V. Masilamani
Bench: T.V. Masilamani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/03/2005
Coram
The Honourable Mr. Justice T.V. MASILAMANI
C.R.P. (NPD) No.947 of 1998
R. Radha .. Petitioner
-Vs-
B. Saraswathy .. Respondent
Civil Revision Petition against the order dated 25.11.1997 in E.A.
No.138 of 1996 in E.P.No.2022 of 1985 in O.S.No.4683 of 1982 on the file of
the X Assistant Judge, City Civil Court, Madras.
!For Petitioner : Mr.G. Annamalai
^For Respondent : Mr.V. Sathyanarayana
:O R D E R
The petitioner has preferred this Civil Revision Petition against the order passed by the X Assistant Judge, City Civil Court, Madras in E.A.No.138 of 1996 in E.P.No.2022 of 1985 in O.S.No.4683 of 1982 dated 25.11.1997.
2. The respondent/decree holder obtained an exparte decree dated 9.1 1.1982 against the petitioner herein in O.S.No.4683 of 1982 for specific performance of an agreement of sale and proceeded to execute the decree in E.P.No.2022 of 1985. The executing court having considered the rival contentions of the parties ordered delivery of the property. Since the warrant was returned on account of obstruction, the respondent filed applications in E.A.No.3675 of 1985 for removable of superstructure put up by the obstructors and delivery of possession, E.A.No.3676 of 1985 for police aid and E.A.No.3677 of 1985 for direction to break open the lock. Afterwards, as per the orders of the executing court, the property was delivered 6.9.1985 after removal of the superstructure with police aid and the petition was closed.
3. Subsequently, the respondent/decree holder filed the application in E.A.No.1684 of 1994 for delivery of possession of the property for the second time on the ground that the revision petitioner/ judgment debtor trespassed into the suit property subsequent to the delivery effected through Court as referred supra. The said application was contested by the petitioner herein. However, the executing Court passed an order dated 22.8.1995 to deliver the property as per decree on or before 1.11.1995. Meanwhile, the petitioner herein/judgment debtor filed the application in E.A.No.138 of 1996 under Section 47 r/ w 94 (3) and 151 of the Civil Procedure Code to declare that the exparte decree dated 9.11.1982 passed in the said suit is a nullity and therefore non est in law, unenforceable and unexecutable and to dismiss the E.P.No.2022 of 1985 as not maintainable in law. After elaborate enquiry, on the basis of the arguments put forth on either side, the learned X Assistant Judge dismissed the said application on 25.11.19 97. Hence, the revision.
5. Heard Mr.G.Annamalai, learned counsel for the petitioner and Mr. V.Sathyanarayanan, learned counsel for the respondent.
6. On a careful perusal of the records of the proceedings, it appear that the crux of the matrix is whether the second execution application filed by the respondent/decree holder for delivery of the suit property is maintainable or not. It is the admitted case of both the parties that in pursuance of the order of delivery passed by the executing Court, the previous execution petition stood closed on 6.9.1985 after recording delivery. Hence, the learned counsel for the revision petitioner has submitted that the second execution petition is not maintainable in law.
7. The revision petitioner has candidly admitted in the counter affidavit filed by her in application in E.A.No.1684 of 1994 that there were huts over the suit property and that it is for the petitioner to find out who are the owners of the huts and how they are in possession of the same and apply for removable of the huts and that after hearing the objections, the application may be ordered. In fact, she would state in the affidavit filed in support of the application in E.A.No.138 of 1996 that she was in possession and enjoyment of the suit property in spite of the earlier order passed by the executing Court to deliver the property after removal of the superstructure with police aid to the respondent/decree-holder. Therefore, the learned counsel for the revision petitioner would urge that the second execution petition was wholly unsustainable in law and that therefore the impugned order passed by the executing court is liable to be set aside.
8. In view of the above circumstances, the learned counsel for the respondent has argued that in the altered circumstances, subsequent execution petition is maintainable in law and he has drawn the attention of this Court to the decision in KANAKAMMA v. KAMALAN (2000 (II) C.T.C. 240) in support of such contention. In a similar set of facts and circumstances, this Court held in the above decision that the decree holder is entitled to file execution application for every recurring infringement as long as the application was filed within time and therefore it was urged that the decree holder cannot be driven for a second suit. The learned Judge, K. SAMPATH, J. (as he then was) after discussing the ratio laid down in a catena of decisions of both the Apex Court and this Court ultimately reiterated the principles of law on the subject as follows:-
"However, in view of the Bench decision of this Court in VENKATACHALAM CHETTY, ETC. (I.L.R. 29 MAD. 314) and the decision in ONDIPUDUR WEAVERS CO-OPERATIVE PRODUCTION ETC. CASE (1977 (II) M.L.J. 19), I am clearly of the view that the lower Court was wrong in driving the revision petitioner to a separate suit. For every recurring infringement as long as the application was filed within time the executing Court is duty bound to give relief to the decree holder."
9. As has been pointed out by the learned counsel for the respondent, it is relevant to mention that the above decision was rendered in relation to a decree for declaration and permanent injunction and the subsequent disobedience perpetrated by the judgment debtor by committing trespass upon the suit property and putting up of a shed in the suit property. On the contrary, in this case, the decree itself is for specific performance of the contract and delivery of the suit property in pursuance thereof and therefore, the learned counsel for the respondent, in my opinion, is right in urging this Court to reject the argument put forth by the learned counsel for the revision petitioner that the second execution petition is not maintainable.
10. Though the learned counsel for the revision petitioner has relied on the decision URBAN IMPROVEMENT TRUST JODHPUR v. GOKUL NARAIN ( AIR 1996 S.C. 1819) for the position that the question of nullity of the decree can be set up at any stage even in the executing proceedings, I am of the opinion that the ratio laid down in the said decision cannot be squarely made applicable to the facts of the present case for the reason that it is too late in a day to contend that the exparte decree passed against the revision petitioner in the suit was obtained behind her back.
11. The axiomatic principle of civil jurisprudence is that the legality of the decree cannot be canvassed before the executing court and therefore the learned Assistant Judge has rightly rejected such contention put forth on behalf of the revision petitioner herein and held that the decree has become final, as the revision petitioner miserably failed to agitate the same before the trial court to work out her remedies in a manner known to law. Hence, this Court is unable to accept such an argument advanced by the revision petitioner and finds that since the revision petitioner failed to take steps to set aside the exparte decree and allowed the same to become final, such contention has to be heard to be rejected.
12. It is informed by the learned counsel for the respondent that in view of the orders passed by the executing court, actual delivery of the property had been effected and the execution petition also stood terminated, as there was no order of stay passed by this Court. Such factual position is not disputed by the revision petitioner. Taking note of the chequered career of the proceedings from 1982 till date, this Court is of the firm view that the attitude of the revision petitioner in prolonging the litigation has to be deprecated and suitable costs awarded to the respondent while dismissing this revision petition.
13. Thus, the Civil Revision Petition is dismissed with costs of Rs.5,000/-.
Index: Yes Internet: Yes dpp To
1. The Registrar, City Civil Court, Madras.
2. The Section Officer, V.R. Section, High Court, Madras.