Madras High Court
A.J.Chandrasekar vs N.Masilamani on 29 October, 2018
Author: P.T.Asha
Bench: P.T.Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 27.08.2018
Pronounced on 29.10.2018
Coram
The Honourable Ms.Justice P.T.ASHA
C.R.P(PD)No.2506 of 2011
and
M.P.No.1 of 2011
A.J.Chandrasekar ...Petitioner
Versus
1.N.Masilamani
2.M/s.Premier Benefit Fund (India) Ltd.,
Having registered Office at No.297,
Mini Street, Park Town,
Chennai – 600 003 and Administrative Office,
144, Trunk Road, Poonamalle,
Chennai – 600 050, through its
Chairman and Managing Director.
3.M/s. Vamana Auctioners,
O.S.Building, Room No.137,
1st Floor, Old No.17, New No.1,
E.K.Guru Street, Periamet,
Chennai – 600 003. ...Respondents
This Civil Revision Petition is filed under Article 227 of the
Constitution of India against the order and decree in O.S.No.4752
of 2003 on the file of the learned III Assistant Judge, City Civil
Court, Madras dated 18.10.2004.
For Petitioner : Mr.V.Lakshminarayanan
For Respondent – 1 : Mr.R.S.Ranganadhan
http://www.judis.nic.in
Respondents – 2 & 3 : Dispensed with vide
Court order dated 06.04.2016
2
ORDER
This Civil Revision Petition is filed invoking the Superintending jurisdiction of this Court under Article 227 of the Constitution of India challenging the judgment and decree passed by the learned III Assistant Judge, City Civil Court, Madras in O.S.No.4752 of 2003 dated 18.10.2004 on the ground that the judgment is one passed contrary to the provisions of Order 20 of Code of Civil Procedure (hereinafter referred to as the “C.P.C”).
2. The brief facts necessary for disposing of this Civil Revision Petition are as follows:
a) The first respondent herein had borrowed a sum of Rs.2,50,000/- from the second respondent Benefit Fund Ltd. As a security for the said loan, he had mortgaged the suit property to the second respondent herein and executed a mortgage deed.
The simple mortgage was registered on the file of the Sub- Registrar, Sembium bearing Document No.2704 of 1997. Since the first respondent had failed to repay the loan amount, the second respondent in exercise of powers conferred on it under Section 69 of the Transfer of Property Act decided to hold a public auction.
http://www.judis.nic.in 3
b) Pursuant to this direction, the third respondent had sent an auction notice to the first respondent calling upon him to repay the outstanding amount failing which, he was informed, the property will be sold in public auction. Despite receiving the notice, the first respondent did not clear his outstandings and therefore, auctioneer/third respondent proceeded to sell the property in public auction on 23.09.2003 and in the said auction, one Mr.Arunkumar was a successful bidder, he having quoted the highest bid of a sum of Rs.4,75,000/-. Thereafter, the auctioneer/third respondent had directed the first respondent to execute the sale deed in favour of the purchaser vide his notice dated 27.10.2003. Despite receiving the notice, the first respondent did not come forward to execute the sale deed and therefore, the sale deed was executed by the second respondent as the mortgagee/vendee in favour of the said Arunkumar.
c) The said Arunkumar had thereafter sold the suit property to the revision petitioner on 27.03.2000 under a sale deed registered as Document No.2412 of 2006 on the file of the Sub- Registrar, Sembium.
d) The revision petitioner had approached the first respondent on several occasions to vacate and hand over the http://www.judis.nic.in vacant possession of the schedule property. However, the 4 requests were not heeded too and ultimately, the revision petitioner was constrained to issue a legal notice dated 13.04.2000 calling upon the first respondent to quit and hand over the vacant possession of the schedule property.
3. Meanwhile, it appears that the first respondent had not brought to the notice of the revision petitioner or others about the suit O.S.No.4752 of 2003 filed by him had been decreed ex-parte. Since the first respondent had refused to vacate the suit premises, the revision petitioner had filed a Civil suit in C.S.No.1118 of 2008 on the file of this Court for the following reliefs:
“I. To grant a judgment and decree in favour of the plaintiff and against the defendants directing the first defendant (Masilamani) to quit and hand over the vacant possession of the suit property to the plaintiff.
II. Award mesne profit of Rs.10,000/- for use and occupation of the suit property for the month of September, 2008 and award mesne profit at the same rate from the date of the suit till the date of delivery of possession.”
4. This suit was later transferred to the City Civil Court, http://www.judis.nic.in Chennai on account of the enhancement of pecuniary jurisdiction 5 and renumbered and assigned O.S.No.11074 of 2010. In the meanwhile, first respondent had also filed O.S.No.3114 of 2010 on the file of the XVII Additional City Civil Court, Chennai against the revision petitioner and respondents 2 & 3 for the following reliefs:
“a) declaring that the sale deed registered as Document No.2652 of 2004 dated 24.03.2004, SRO, Sembium, Chennai – 11 executed by the first defendant and in favour of the second defendant in respect of the plaint schedule property is null and void ab-initio and not binding on the plaintiff;
b) declaring that the sale deed registered as Document No.2412 of 2005 dated 27.03.2006, SRO, Sembium, Chennai – 11, executed by the second defendant to and in favour of the third defendant in respect of the plaint schedule property is null and void abi-initio and not binding on the plaintiff.
c) for a permanent injunction restraining the 3rd defendant, his men, agents, servants, successors in interest, nominees, representatives etc., from interfering with the peaceful possession and enjoyment of the plaintiff's plaint schedule property in any manner or deal with the same in any manner whatsoever/detrimental or alienate the same to the interests of the plaintiff.” http://www.judis.nic.in 6
5. It is in this plaint that the revision petitioner has mentioned about the ex-parte decree dated 18.10.2004 in O.S.No.4752 of 2003 by the learned III Assistant Judge, City Civil Court, Chennai. It is then that the revision petitioner has moved this Court invoking its jurisdiction under Article 227 of the Constitution of India since the judgment in O.S.No.4752 of 2003 was not in keeping with the provisions of Order XX Rule 5 and therefore, a nullity.
6.1. Mr.V.Lakshminarayanan, learned counsel appearing on behalf of the revision petitioner would contend that the decree obtained by the respondent on 18.10.2004 was much after the auction and sale in favour of Mr.Arunkumar. Further the relief itself had become infructuous since the suit is filed for declaration that the auction held on 23.09.2003 is wrongful, illegal, improper, null and void ab initio and not binding on the plaintiff for a consequential injunction.
6.2. The relief had become infructuous on 23.09.2003 when the auction itself had been held and the sale in favour of the successful bidder had been completed. He would further http://www.judis.nic.in argue that the first respondent had not obtained any interim 7 orders injuncting the second respondent or the auctioneer from conducting the auction and therefore, the auction that was held on 23.09.2003 was a valid one. He would draw the attention of this Court to the Reply notice dated 17.09.2003 issued by the first respondent to second respondent and the auctioneer which would prove that the first respondent was aware about the proposed auction sale. He would also point out that even in the counter affidavit filed in I.A.No.17364 of 2003 in O.S.No.4752 of 2003, the second respondent herein had stated that the suit itself had become infructuous as the auction was held on 23.09.2003 at 03:00 p.m. Therefore, despite notice of the auction having been concluded, the first respondent had suppressed this fact and illegally obtained an ex-parte decree.
7. Further, in the suit filed by the revision petitioner in C.S.No.1118 of 2008 which is subsequently renumbered as O.S.No.11074 of 2010 and transferred to the III Fast Track Court, Chennai the sale deed in favour of the successful bidder had been enclosed. The learned counsel would argue that subsequent to this decree, the suit filed by the revision petitioner had been decreed and the suit in O.S.No.3114 of 2010 filed by http://www.judis.nic.in the first respondent was dismissed after contest. 8
8. The learned counsel for the petitioner would therefore submit that the decree in O.S.No.4752 of 2003 has to be set aside on account of the fact that it was contrary to the provisions of Order XX Rule 5 of C.P.C and further the subsequent events had rendered the decree infructuous. In support of his contentions, he has relied on the following judgments:
● Shipping Corporation of India Ltd. Vs. Machado Brothers and Ors. reported in (2004) 11 SCC 168 ● M/s.Meenakshisundaram Textiles Vs. M/s.Valliammal Textiles Ltd., reported in (2011) 3 CTC 168, (2011) 3 LW 80 ● G.Selvam and Ors. Vs. Kasthuri (deceased) and Ors.
reported in (2015) 3 LW 705
9. Mr.R.S.Ranganadhan, learned counsel appearing on behalf of the first respondent would contend that the auction sale itself is a fraudulent and fictitious one. He would contend that in the counter affidavit filed in I.A.No.17364 of 2003 in O.S.No.4752 of 2003, the second respondent has not categorically stated that auction had been held on 23.09.2003 http://www.judis.nic.in and therefore, the auction is shrouded with suspicion. He would 9 also contend that since the first respondent had filed his counter it has to be presumed that the decree in O.S.No.4752 of 2003 is a contested decree and thereby, the Application filed under Section 69 of Transfer of Property Act, 1882 was not maintainable. He would further argue that the first respondent had filed a Review Application in O.S.No.3114 of 2010 and therefore, when the Review Application is pending, the present revision filed under Article 227 of the Constitution of India was not maintainable. In support of his contention, he had submitted the judgment of the Honourable Supreme Court in Rekha Mukherjee Vs. Ashish Kumar Das and Ors. reported in AIR 2005 SCC 1944.
10. Heard the counsels on both sides and perused the papers.
11. A mere perusal of the judgment passed in O.S.No.4752 of 2003 would clearly show that the judgment is not on the lines of provisions of Order XX Rule 5 of C.P.C. No issues have been framed by the learned Judge and nor has he rendered a finding on such issues. Order XX Rule 5 of the C.P.C. reads as follows:
http://www.judis.nic.in 10 “5. Court to state its decision on each issue – In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.”
12. Therefore, a reading of this order makes it ample clear that a judgment should contain the issues relevant for the disposal of the suit and reasoning and finding of the Presiding Officer on the issues, in and by which he arrives at the conclusion should also be found. The judgment pronounced by the learned Judge in O.S.No.4752 of 2003 totally lacks these ingredients. This Court in its judgment in M/s.Meenakshisundaram Textiles Vs. M/s.Valliammal Textiles Ltd., reported in (2011) 3 CTC 168, (2011) 3 LW 80 relying upon the earlier judgments has held as follows:
“16. Code of Civil Procedure does not define either an ex parte judgment or an ex parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex parte judgment and the decree drawn on the basis of that judgment is known as an http://www.judis.nic.in ex parte decree. Hence, even for an ex parte 11 judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief, claimed thereunder, the evidence and the conclusion arrived at by the Court on the above.” Ultimately, this Court had set aside the judgment therein challenged as one which is not in conformity with the provisions of Section 2 sub-rule 9 r/w Order IV of C.P.C.
13. In yet another judgment in G.Selvam and Ors. Vs. Kasthuri (deceased) and Ors. reported in (2015) 3 LW 705, this Court apart from upholding the right of the petitioner to challenge the ex-parte preliminary decree under Article 227 of the Constitution of India had also set aside the ex-parte decree as contrary to the provisions of Order XX Rule 4 of C.P.C. The learned Judge had followed the ratio laid down in the judgment of the Honourable Apex Court in C.N.Ramappa Gowda Vs. C.C.Chandregowda (dead) by LRs and Anr. reported in (2012) 3 LW 326 = 2012 (5) SCC 265.
14. The aforementioned judgments squarely apply to the facts of the instant case and therefore, the judgment and decree http://www.judis.nic.in passed by the learned Judge is liable to be set aside. 12
P.T.ASHA, J., mrr
15. In the result, this Civil Revision Petition is allowed and the judgment and decree passed by the learned III Assistant Judge, City Civil Court, Madras in O.S.No.4752 of 2003 dated 18.10.2004 is set aside. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
29.10.2018 mrr Index : Yes / No Speaking Order (or) Non-Speaking Order To The Assistant Judge, City Civil Court, Madras.
Pre-Delivery Order in C.R.P(PD)No.2506 of 2011 http://www.judis.nic.in 13 http://www.judis.nic.in