Madras High Court
A.V.Raju vs H.Phoolchand(Deceased) on 18 January, 2011
Equivalent citations: AIR 2011 MADRAS 83, (2011) 1 MAD LW 911 (2011) 3 MAD LJ 666, (2011) 3 MAD LJ 666
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1581 of 2010 and M.P.No.1 of 2010 A.V.Raju ... Appellant vs. H.Phoolchand(deceased) Smt.Sayar Bai (Deceased) 1.S.P.Mahaveer Big Bazaar ... Respondent This second appeal is filed against the judgement and decree dated 26.11.2010 passed by the Sub Court, Nilgiris, in A.S.No.28/10 confirming the order dated 27.4.10 passed by the District Munsif, Kothagiri, in E.A.No.79 of 1996 in E.P.No.127 of 1995 in O.S.No.617 of 1984. For Appellant : Mr.S.Vijayakumar For Respondent : Mr.V.Raghavachari for Mr.L.Mouli JUDGMENT
This second appeal is filed by the obstructor, inveighing the judgement and decree dated 26.11.2010 passed by the Sub Court, Nilgiris, in A.S.No.28/10 confirming the order dated 27.4.10 passed by the District Munsif, Kothagiri, in E.A.No.79 of 1996 ordering removal of obstruction in E.P.No.127 of 1995 in O.S.No.617 of 1984, which was filed for recovery of possession and for cost.
3. The germane and essential facts giving rise to the filing of the second appeal would run thus:
(a) The deceased Phoolchand filed the suit O.S.No.617 of 1984 as against Lourdumaryammal, seeking the relief of recovery of possession of the property covered under the sale deed dated 14.12.1972 executed by one Aruldoss and his wife Lourdumary Ammal, in his favour, measuring an extent of 35 cents of land, and the house situated thereon bearing Door No.25/33 in Survey No.1064 of 1972.
(b) The suit was decreed. Subsequently, E.P.No.127 of 1995 was filed for obtaining delivery of possession. Since there was obstruction raised by the appellant herein in this second appeal, E.A.No.79 of 1996 was filed by the decree holder for removal of obstruction.
(c) In the course of hearing, on the side of the decree holder no one was examined and Ex.P1 was marked. The obstructors on their side examined the 3rd obstructor as R.W.1 as well as the first obstructor as R.W.2 and marked Exs.R1 to R16.
(d) Ultimately, the Executing Court allowed the application for removal of obstruction and ordered delivery.
(e) Being aggrieved by and dissatisfied with the said order, the appeal was filed in A.S.No.28 of 2010 by the appellant/obstructor concerned and after hearing both sides, the appellate Court dismissed the appeal.
4. Challenging and impugning the judgments and decrees of the Courts below, the second appeal has been focussed on various grounds inter lia to the effect that the Courts below failed to take into account the fact that the description of property as found set out in the suit is different from the property, which the appellant/obstructor is occupying.
5. The appellant in the second appeal suggested the following proposed substantial questions of law:
"a. Whether both the Courts are right in holding that the suit property purchased by the appellant during the pendency of the proceedings is hit by the provisions of Section 52 of the Transfer of Property Act.
b. Whether both the Courts below are right in ordering delivery of possession, when the decree in O.S.No.617/84 is a nullity and cannot stand in the eye of law.
c.Whether both the Courts below are right in ordering delivery of possession in respect of the suit property on the strength of the decree which is contrary to the decisions of this Hon'ble Court rendered in 1995 L.W.page 141.
d. Whether the appellate court was right in misinterpreting the case laws laid down by the Hon'ble Apex Court reported in AIR 2008 SC page 1997 and also this Hon'ble Court in 2010 I Madras weekly note page 843 and the same are not applicable to the facts of the case."
6. The learned counsel for the appellant/obstructor, placing reliance on the grounds in the memorandum of second appeal as well as the typed set of papers would develop his arguements, which could tersely and briefly be set out thus:
(i) The sale deed in favour of the original plaintiff-Phoolchand is niggard and bereft of any reference to the superstructures bearing door Nos.25/34 and 25/35. The original plaintiff purchased purportedly and allegedly a land measuring 35 cents with a superstructure bearing Door No.25/33 only. When such was the position, the lower Court was totally wrong in decreeing the suit directing the judgment debtor to hand over possession of the superstructures bearing Door No.25/34 as well as 25/35.
(ii) Even though the Courts below ushered in the doctrine of lis pendens, they failed to take into account the fact that the superstructures bearing door Nos.25/34 and 25/35 were not in stricto senso the subject matter of the suit and for that matter even the sale deed dated 14.12.1972 referred to supra.
(iii) The Executing Court should have upheld the obstruction caused by the appellant herein and accordingly dismissed the E.P. in so far as the property covered under the sale deed dated 15.7.1989 is concerned.
Accordingly, the learned counsel for the appellant/obstructor prays for allowing the second appeal.
7. By way of torpedoing and pulverising the arguements as put forth and set forth on the side of the appellant/obstructor, the learned counsel for the respondent/decree holder would advance his arguements as under:
Indubitably and indisputably the appellant/obstructor, in the counter filed in the E.A.No.79 of 1996 admitted that the superstructures bearing door Nos.25/34 and 25/35 do exist in the area covered under the sale deed dated 14.12.1972 and the suit O.S.No.617 of 1984 was filed by Poolchand even on 3.7.1984, whereas the alleged sale deed dated 15.7.1989 emerged during the pendency of the litigation and in such a case, both the Courts below correctly ushered in the doctrine of lis pendens as found enshrined in Section 52 of the Transfer of Property Act, warranting no interference by this Court in Second appeal.
8. Before venturing into the rival contentions, I fumigate my mind with the following decisions of the Honourable Apex Court.
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL.
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:
It is palpably and pellucidly clear that second appeal cannot be entertained unless a substantial question of law is found emerged in the matter concerned and as such, it has to be seen here as to whether any substantial question of law is involved in this matter.
9. I would like to extract herein Order 21 Rule 98 of C.P.C.
"Order 21 Rule 98: Orders after adjudication (1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-
. . . . .
. . . . .
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days."
10. A bare perusal of the above proposition of law would plainly and patently make the point clear that an obstructor claiming right under the judgment debtor cannot call upon the Court to decide his obstruction, like a suit. What is contemplated under the law is that if any obstructor sets a claim independent of the judgment debtor in a decree, then such an obstructor's obstruction has to be dealt with like a suit and not the obstruction of the one caused by the appellant/obstructor in this case.
11. I would like to observe that the Courts below would have done well by simply invoking this trite proposition of law and dealt with the matter summarily. However, they took much time to ponder over all the features involved in this case and rendered elaborate judgments.
12. For the purpose of comprehensively deciding this matter, I would like to analyse as to whether there is any truth in the contention of the obstructor that the property sought to be delivered from the alleged possession of the obstructor was not the subject matter of the suit.
13. I would like to extract hereunder the schedule of property as found set out in the sale deed dated 14.12.1972:
VERNACULAR (TAMIL) PORTION DELETED
14. Similarly, I would like to extract hereunder the schedule of property found in the decree in O.S.No.617 of 1984:
Schedule of Property Ootacammund Regn, Dist: Kotagiri Sub Regn.Dist.Kotagiri Village S.No.1407/2 Total extent 3.35 acres. Extent belonging to the plaintiffs 0.35 acre together with the building bearing Door Nos.25/33, 25/34 and 25/35 within Kotagiri Panchayat.
15. A mere comparison of the schedule of property as found in the sale deed vis-a-vis, the schedule of property found in the decree in the suit would exemplify and demonstrate that in the decree there is an additional reference to two Door Nos.25/34 and 25/35, which are not found mentioned in the schedule of property appended to the said sale deed.
16. The core question arises as to who should raise such contention.
17. The judgment debtor could have very well raised all these points and called upon the Court to decide it. The pertinent question arises as to whether a pendente lite purchaser, who poses himself as obstructor could step into the shoes of the judgment debtor and raise all these points. Once a case has been decided and it fructified in the form of decree and it has not been set aside, then such a decree has to be executed in letter and spirit.
18. At this juncture, I recollect and call up the following maxims:
(i) Executio juris non habet injuriam The execution of law does no injury.
(ii) Actus Curiae neminem gravabit An act of the Court shall prejudice no man.
(iii) Parum est latam esse sententiam nisi mandetur executioni It is little or to little purpose that judgment be given unless it be committed to exeution.
19. If at all there is any error in any judgment or decree, it is only the appellate forum or the higher forum concerned which could rectify it and a purchaser pendente lite cannot question the legality of the decree and the propriety of the Court in passing such a decree.
20. At this juncture, I recollect and call up the following decision of the Honourable Apex Court:
(2008) 7 SUPREME COURT CASES 144- USHA SINHA VS. DINA RAM AND OTHERS, certain excerpts from it would run thus:
"23.It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist obstruct execution of decree passed by a competent court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject-matter of suit. "Lis pendens" itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21.
24. In Silverline Forum (P) Ltd. v. Rajiv Trust3 this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the executing court must hold that he had no right to resist or obstruct and such person cannot seek protection from the executing court. The Court stated: (SCC pp. 727-28, para 10) 10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the executing court, if such questions are relevant to the adjudication of the application. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act. (emphasis supplied) (See also Sarvinder Singh v. Dalip Singh4.)
25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum3. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
26. For invoking Rule 102, it is enough for the decree-holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment-debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21."
21. At one point of time the learned counsel for the appellant/obstructor has submitted the arguement to the effect that the property bearing Door Nos.25/34 and 25/35 are situated not within the aforesaid extent of 35 cents and the Courts below failed to take into account such a fact.
22. A mere perusal of the counter filed by the appellant/obstructor in the said E.A. would clearly exemplify and demonstrate that that was not the case at all before the Executing Court. In fact, the obstructor candidly and categorically admitted that the superstructures bearing Door Nos.25/34 and 25/35 do situate within the said 35 cents. However, the obstructor went to the extent of challenging the very sale deed dated 14.12.1972, which emerged between Poolchand-the original plaintiff and his vendors, which the obstructor was not expected to raise such a plea and the Court below appropriately and appositely, correctly and convincingly discarded the plea of the obstructor as untenable, warranting no interference in the second appeal.
23. The perusal of the records also would display and exemplify that after the emergence of the sale deed dated 14.12.1972 there were certain additional superstructures put up and those two superstructures, perhaps, might be the additional superstructures which have become the subject matter of controversy.
24. The appellant/obstructor himself virtually relied upon the encumbrance certificate, a copy of which is found enclosed in the typed set of papers. In fact, the obstructor obtained the encumbrance certificate specifying the relevant schedule of property and the Registration Department furnished the relevant facts, setting out the following details:
VERNACULAR (TAMIL) PORTION DELETED
24. It is therefore clear that the superstructures bearing Door Nos.25/34 and 25/35 are found to be situated only within the said extent of 35 cents of land, which in turn happened to be the subject matter of the sale deed dated 14.12.1972. The certificate dated 20.4.2010 issued by Kothagiri Town Panchayat, Kothagiri, would reveal that the obstructor got mutated in the Register his name relating to the superstructure bearing Door Nos.25/34 and 25/35 from the year 1989. As such, even as per the obstructor's case, those two superstructures, over which he is claiming right are situated only in the property, which in turn happened to be the subject matter of sale deed dated 14.12.1972 and in such a case, as a purchaser pendente lite he cannot raise the points which he raised in the obstruction petition by way of defence. The Courts below understanding the correct factual as well as the legal position, so to say au fait with law and au courante with facts decided the matter, warranting no interference in second appeal.
25. In view of my discussion supra, I am of the considered view that the suggested questions of law do not arise at all and they are antithetical to the well settled proposition of law.
26. In the result, I am of the view that there is no question of law much less substantial question of law arises in this matter. Accordingly, the second appeal is dismissed. However, there is no order as to costs. Consequently connected miscellaneous petition is dismissed.
27. The learned counsel for the appellant would make an extempore submission that this Court might grant time to the obstructor for vacating and handing over possession of the premises.
28. I am of the view that three months' time could be granted for vacating the premises and handing over delivery of possession. Accordingly, the appellant shall vacate the premises and hand over possession to the judgment holder on or before 18.4.2011 and to that effect an affidavit shall be filed by the obstructor within 15 days from this date.
Msk To
1.The Principal District Judge, Erode
2.The II Additional Subordinate Judge, Gobichettipalayam