Madras High Court
Elumalaiyan vs Lakshmi on 30 January, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.01.2014 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.R.P.(NPD) No.3221 of 2012 and M.P.No.1 of 2012 Elumalaiyan ... Petitioner Vs. 1.Lakshmi 2.Mathappan ... Respondents Civil Revision Petition filed under Section 115 of the Civil Procedure Code to set aside the order dated 07.08.2012 made in E.A.No.48 of 2012 in E.A.No.4 of 2010 in E.P.No.34 of 2009 in O.S.No.565/1988 on the file of Principal District Munsif, Bhavani. For Petitioner : Mr.E.C.Ramesh For Respondents : Ms.Zeenath Begum for R1 O R D E R
Notice before admission was given and the first respondent/ decree holder is represented by counsel. The second respondent remains ex-parte. The first respondent, claiming title to the property, which according to her was not in dispute, filed the suit in O.S.No.565/1988 on the file of the Principal District Munsif, Bhavani for recovery of possession of the suit property from the second respondent.
2. The second respondent contested the suit and lost his legal battle with the result that the suit was decreed as prayed for by a judgment and decree dated 27.07.1990. On appeal in A.S.No.36/1991 on the file of the learned Subordinate Judge, Gopichettipalayam, the lower appellate court confirmed the decree by a judgment and decree dated 15.12.1993. Thereafter, the second respondent preferred a second appeal in S.A.No.542/1994 on the file of this court. The said second appeal came to be dismissed on 18.01.2005. Thereafter, the first respondent/decree holder levied execution by preferring E.P.No.34/2008.
3. When the Execution Petition was pending, the revision petitioner, claiming to have got leasehold right in respect of the suit property, filed an application in E.A.No.4/2010 under Order 21 Rule 97 CPC obstructing the execution contending that he has got a leasehold right in respect of the suit property by virtue of a Lease Deed dated 05.01.1990 executed by the second respondent in favour of the revision petitioner. Enquiry in the said application was in progress and the revision petitioner filed E.A.No.48/2012 in the said EA. for reopening the enquiry in the application in E.A.No.4/2010 for leading additional evidence through the scribe of the Lease Deed allegedly executed by the 2nd respondent in favour of the revision petitioner. The learned Principal District Munsif, chose to hear the said application and dismiss the same by an order dated 07.08.2012, which is impugned in the present revision.
4. The submissions made by Mr.E.C.Ramesh, learned counsel for the revision petitioner and by Ms.Zeenath Begum, learned counsel for the first respondent are heard. The materials available in the form of typed set of papers are also perused.
5. Admittedly, the first respondent/decree holder is the owner of the property, but the possession of the property was with the second respondent. Hence the first respondent herein had to file the suit for recovery of possession. The second respondent unsuccessfully resisted the suit and also prosecuted an appeal and a second appeal. The suit came to be filed in the year 1988. The revision petitioner claims to have got leasehold right in respect of the suit property from the judgment debtor on 05.01.1990.
6. The obstruction made by the revision petitioner should have been raised and the application filed by him should have been thrown out at the threshold itself, based on his own plea that, he derived the right from a party to the suit, namely the judgment debtor during the pendency of the suit. The transaction being one pendente lite, is hit by the principle of doctrine of lis pendens. Without even considering the same, the learned Principal District Munsif seems to have wasted about two years for conducting an enquiry in such an application, when such an application, on its face itself is not maintainable. During the enquiry in E.A.No.4/2010, which according to the above said observation of this court, should have been thrown out at the threshold, the revision petitioner was allowed to file another application, namely E.A.No.48 of 2012 for reopening the enquiry in E.A.No.4 of 2010 for adducing further evidence. The learned Principal District Munsif, seems to have no control over the proceedings by allowing the judgment debtor to set up a third party to raise obstruction and allowed an abuse of process of court to be made by the revision petitioner by preventing the execution of the decree for more than two years by simply prolonging the enquiry in E.A.No.4/2010, where such an enquiry was not at all warranted.
7. When the revision petitioner's contention is that he derived title from the judgment debtor during the pendency of the lis, the learned Principal District Munsif, should have held that the decree passed against the second respondent, shall very well bind the revision petitioner also. Since the learned Principal District Munsif has failed to exercise control over the proceedings and prevent abuse of process of court, this court, in exercise of its power of revision under Section 115 CPC and also in exercise of its power of superintendence under Article 227 of the Constitution of India, deems it appropriate to dismiss the present civil revision petition and at the same time, direct the rejection of E.A.No.4/2010 and execution of the decree by passing necessary order in E.P.No.34/2009.
In the result, the civil revision petition is dismissed. The learned Principal District Munsif shall reject E.A.No.4/2010 pending on his file and pass necessary order in E.P.No.34/2009 within one month from the date of receipt of a copy of this order. There shall be no order as to cost in the civil revision petition. Consequently, the connected miscellaneous petition is closed.
30.01.2014 Index : Yes Internet : Yes asr/-
To The Principal District Munsif, Bhavani Note to office:
Issue order copy on 31.01.2014 P.R.SHIVAKUMAR,J. asr/-C.R.P.(NPD)No.3221 of 2012
Dated : 30.01.2014