Madras High Court
Kumaresan vs M.Velu on 26 August, 2022
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.(NPD)No.839 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.08.2022
PRONOUNCED ON : 26.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
CRP.(NPD).No.839 of 2021
and
CMP.No.11586 of 2022
Kumaresan ...Petitioner
-Vs-
1.M.Velu
2.Arivarasan
3.Savithiri ... Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India,
to allow the Civil Revision Petition by setting aside the fair and decreetal order
dated 07.03.2019 passed in I.A.No.384 of 2016 in O.S.No.376 of 2007 on the file
of the Learned District Munsif, Madurantakam.
1/16
https://www.mhc.tn.gov.in/judis
CRP.(NPD)No.839 of 2021
For Petitioner : Mr.AMM.Ramana
for Mr.R.Saravana Kumar
For Respondent : Mr.G.Mohammed Aseef for R1
R2-No Appearance
R3-Notice not ready
ORDER
This petition has been filed seeking to allow the Civil Revision Petition by setting aside the fair and decreetal order dated 07.03.2019 passed in I.A.No.384 of 2016 in O.S.No.376 of 2007 on the file of the Learned District Munsif, Madurantakam.
2. The Petitioner herein, who is the first Plaintiff in the suit and he was the first Respondent in I.A.No.384 of 2016 in O.S.No.376 of 2007.
3. It is the contention of the Learned Counsel for the Revision Petitioner that the suit in O.S.No.376 of 2007 was filed by the Plaintiff against the Defendants viz., Marimuthu Gounder and his son Arivarasan for the relief of 2/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 specific performance. As per the plaint averments, the sale agreement was entered into between the Plaintiff in O.S.No.376 of 2007 and the Defendants in O.S.No.376 of 2007. On the date of the agreement, the sale agreement amount was agreed for a sum of Rs.70,000/-. On the date of agreement of sale entered into between the Plaintiff and the Defendants, Rs.50,000/- was paid to the Defendants, who are father and son viz., Marimuthu Gounder and Arivarasan. In the said agreement, it was stated that the balance amount of Rs.20,000/- will be paid on the date of execution of the sale deed by the Defendants 1 & 2. After payment of Rs.50,000/- the Defendants 1 & 2, did not come forward to execute the sale deed inspite of repeated request by the Plaintiff.
4. It is the further contention of the Learned Counsel for the Petitioner, who is the Plaintiff in the suit in O.S.No.376 of 2007, that time is the essence of any contract, particularly, in the specific performance contract involving immovable property. The Plaintiff was always ready and the Defendants 1 & 2 were not ready. Therefore, the suit was filed for specific performance of contract. In the suit, the Defendants 1 & 2 entered appearance by engaging Counsel and filed written statement disputing the contention in the 3/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 plaint. Therefore, the Learned District Munsif, Maduranthagam had framed issues and trial commenced. During the trial, the Plaintiff deposed evidence and marked documents. However, the Defendants 1 & 2, who are father and son, did not appear. Therefore, the Defendants were set exparte and the suit was decreed exparte on 03.06.2010.
5. The suit was filed in the year 2007 and the date of filing of the suit is on 15.11.2007. The Defendants executed the sale agreement on 21.11.2005 and exparte decree was passed on 03.06.2010. Subsequently, the first Respondent herein, who is the third party to the suit proceedings, filed a petition to condone the delay of 1893 days in filing the petition to set aside the exparte decree.
6. It is the contention of the Petitioner in I.A.No.384 of 2016, who is the third party to the proceedings in O.S.No.376 of 2007, that he was not aware of the filing of O.S.No.376 of 2007 and passing of exparte decree. It is the contention of the Petitioner in I.A.No.384 of 2016 that the Plaintiff's father Thulukkanam had preferred a Police complaint before Orathy Police on 4/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 15.08.2015 and based on the Police complaint, the Petitioner, who is the third party, was summoned by the Orathy Police. Only during enquiry by the Police, he came to know about filing of the suit by the Plaintiff in O.S.No.376 of 2007 for specific performance of the contract and exparte decree passed on 03.06.2010.
7. It is the contention of the Petitioner in I.A.No.384 of 2016, who is the third party to the suit, that he had purchased the property from one Krishnan, who had purchased the same from the defendants in O.S.No.376 of 2007. The said Krishnan transferred the patta in his favour in patta No.476 and he was in possession and enjoyment. The said Krishnan, who sold the property to him on 20.01.2012, was not at all a party to the proceedings in O.S.No.376 of 2007. Though the suit decreed exparte on 03.06.2010, only on 16.08.2015, the Petitioner in I.A.No.384 of 2016, who is the third party to the proceedings, in O.S.No.376 of 2007 came to know about the exparte decree.
8. It is the further contention that if he had knowledge of those facts, he would not have purchased the suit property. It is the contention of the 5/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 Petitioner in I.A.No.384 of 2016, who is the third party to the suit in O.S.No.376 of 2007, that the alleged sale agreement entered in favour of the Plaintiff in O.S.No.376 of 2007 is a bogus document and it was created after selling the property to Krishnan by antedating the agreement. The Petitioner in I.A.No.384 of 2016, who is the third party in O.S.No.376 of 2007, is the bona fide purchaser, without notice of Plaintiff's alleged agreement. Further, he claimed that the exparte decree has become infructous as the Plaintiff had not filed any Execution Petition. Therefore, the petitioner in I.A.No.384 of 2016 is the subsequent purchaser and he steps into the shoes of the Defendants 1 & 2 and he is entitled to file this application to set aside exparte decree passed on 03.06.2010.
9. On coming to know about the same, he filed a petition to condone delay in setting aside the exparte decree. No prejudice will be caused to the Respondents 1 & 2, if the same is allowed. The first Respondent in I.A.No.384 of 2016, is the Plaintiff in the suit. The exparte decree reads as follows:
“1. That the Defendants be and are hereby directed to execute and register the sale deed in favour of Plaintiff in respect of the suit property within 3 months from the date of this decree.6/16
https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021
2. That if the Defendants fail to execute and register the sale deed the Plaintiff can approach the Court of law to execute and register the sale deed at the cost of the Plaintiff.
3. That the Defendant be and are hereby directed to deliver possession of the suit property to the Plaintiff.
4. That the Defendants to pay the Plaintiff a sum of Rs.5,255.50 being the cost of this suit.”
10. In the counter, the petitioner herein, who is the plaintiff in the suit, had stated that he had filed E.P.No. 17 of 2016 against the Defendants in the suit/the Judgment Debtors. The Judgment Debtors had committed contempt of Court, by disobeying the decree. He had also filed EP.No.43 of 2016 for execution of sale deed. Therefore, the petition filed by the Petitioner in I.A.No.384 of 2016, who is the third party in O.S.No.376 of 2007, who claims to have purchased the property from one Krishnan. The said Krishnan alleged to have purchased the property from his vendor, who is none other than the Judgment Debtors/the Defendants 1 & 2 when the suit was pending on 7/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 20.11.2007. Therefore, after institution of the suit and after filing of the written statement, the Defendants 1 & 2 in the suit in O.S.No.376 of 2007 had executed a sale deed in favour of Krishnan. The said Krishnan had sold the property to the Petitioner in I.A.No.384 of 2016/third party. As per the affidavit of the Petitioner itself, makes it clear that all the sale deeds are affected by the principles of lis pendens. Therefore, the Court ought not to have allowed the petition filed by the third party, who claims to have purchased the property in which, the exparte decree had been passed and EPs are pending viz., one EP for contempt and second EP for execution of sale deed.
11. At the stage of proceedings in EPs are pending, a third party has come before this Court to set aside the exparte decree, in which, the third party has no business, who is bound by the principles of lis pendens. The petition filed for condoning the delay of 1893 days from the date of passing of the exparte decree, the Learned District Munsif, Maduranthagam, ought not to have allowed the petition, ignoring the contentions of the counter at the stage of pendency of Execution Petition in the very same Court. The Learned District Munsif ignored the pendency of the Execution Petitions and had allowed the petition on the costs 8/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 of Rs.2,000/-. Aggrieved by the same, the Plaintiff in O.S.No.376 of 2007 who is the Respondent in I.A.No.384 of 2016 had approached this Court by filing this Revision Petition.
12. The Learned Counsel for the first Respondent submitted that the petition filed by the Plaintiff as Revision Petitioner is not maintainable as he failed to implead the said Krishnan, who is the vendor of the third party and the Petitioner in I.A.No.384 of 2016. Suppressing the fact that the property was sold by the Defendants 1 & 2 in favour of the said Krishnan, the Plaintiff had proceeded and obtained exparte decree. Since the properties were already sold by the Defendants 1 & 2, they did not appear before the Court. Therefore, the exparte decree passed by the Court was behind the back of the said Krishnan. The Plaintiff was well aware of those facts. Therefore, by allowing that petition, the Learned District Munsif, Maduranthagam, had rightly passed orders, which does not warrant any inference by this Court exercising its discretionary powers. This petition lacks merit and it has to be dismissed. 9/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021
13. In support of the above contentions, he relied upon the reported judgment in the Hon'ble Supreme Court in Ram Prakash Agarwal and Another Vs. Gopi Krishnan (Dead through Lrs.) and Others, reported in (2013) 11 SCC
296. The relevant portion of the said judgment at para No.22, is extracted hereunder:
“22. In the instant case, we have to bear in mind that the proceedings stood concluded so far as the Court of first instance is concerned, and that the Respondent was not the party before the said Court. Permitting an application under Order 9 Rule 13 CPC by a non-party, would amount to adding a party to the case, which is provided for under Order 1 Rule 10 CPC, or setting aside the exparte judgment and decree i.e., seeking a declaration that the decree is null and void for any reason, which can be sought independently by such a party. In the instant case, as the fraud, if any, as alleged, has been committed upon a party, and not upon the Court, the same is not a case where Section 151 CPC could be resorted to by the Court, to rectify a mistake, if any was made.”
14. The Learned Counsel for the Respondent relied upon the the ruling of the reported judgment in the Hon'ble Supreme Court in Raj Kumar Vs. 10/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 Sardari Lal reported in 2004 (1) SCR 838 and the relevant portion is extracted hereunder:
“ ...It was a case of exercising discretion not to grant leave under Order 22 Rule 10 of the CPC, in the circumstance of the case, as in the opinion of this Court permitting impleadment and recognizing the alienation/assignment would amount to defeating the ends of justice and the prevalent public property. That case is clearly distinguishable.”
15. Considering the rival submissions and the ruling cited by the Learned Counsel for the Petitioner, it is found that the orders passed by the Learned District Munsif, Maduranthagam, is unacceptable as it is hit by principles of lis pendens. As per the affidavit of the Petitioner in I.A.No.384 of 2016, who is the third party to the proceedings in O.S.No.376 of 2007, may be he was not aware of the prior proceedings that the Defendants 1 & 2, who had entered into sale agreement with the Plaintiff. Further, after entering the sale agreement, they received a sum of Rs.50,000/- on the date of sale agreement, but failed to execute the sale deed for a sum of Rs.70,000/- as agreed. After filing 11/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 written statement in the suit, they failed to appear. During the pendency of the suit, the Defendants 1 & 2 sold the property to one Krishnan.
16. The contention of the Learned Counsel for the first Respondent herein that the Vendor of the first Respondent/Krishnan was not impleaded as party to the proceedings by the Plaintiff in O.S.No.384 of 2016 cannot be accepted, as the sale was executed during pendency of the suit. When the Defendants 1 & 2 had remained exparte, the said contention is not acceptable and reasonable under the principles of “lis pendens”. Whatever may be the result of the adjudication in the dispute between the Plaintiff and the Defendants 1 & 2 in O.S.No.384 of 2016, the outcome of the dispute/the Judgment in the suit will bind the Defendants 1 & 2, who remained exparte. The subsequent alienation made when the dispute was pending before the Court binds the parties who had purchased the property from the Defendants 1 & 2. In that principle, the Plaintiff is not expected to implead the said Krishnan from whom the first Respondent herein had alleged to have purchased the property. Therefore, the arguments of the Learned Counsel for the first Respondent in the Civil Revision Petition, (who is the Petitioner in I.A.No.384 of 2016 who is the third party to the suit 12/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 proceedings) that since the said Krishnan was not impleaded as party to the proceedings by the Plaintiff in O.S.No.384 of 2016, the sale executed is not valid under the principles of lis pendens proceedings. Further, the said Krishnan had purchased the property during the pendency of the dispute before the Court. The observations made in the Judgment in Ram Prakash Agarwal and Another Vs. Gopi Krishnan (Dead through Lrs.) and Others, (cited supra), the facts are different, when there is fraud or collusion the exparte decree can be set aside, as per the reported decisions. Here in this case no such claim had been made out.
Also the facts of this case attracts the principle of lis pendens. Therefore, the rulings cited by the Learned Counsel for the Respondent is rejected as not applicable to the facts of this case.
17. Therefore, allowing the petition filed by the third party for condoning delay amounts to protract the proceedings and it cause harassment to the Decree Holder, after such a long period. The suit was filed in the year 2007 and decreed in the year 2010. EPs were filed in the year 2016, which is still pending. Only after receipt of notice in E.P. by the Judgment Debtor, the Defendant died. Therefore, he had instigated the third party to file this petition. 13/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 The petition for condonation of delay of 1893 days having been allowed is nothing but an abuse of process of the Court, which has to be condemned by this Court. Therefore, the power of the High Court under Article 227 of Constitution of India, has to be invoked in the face of all the above mentioned circumstances. The arguments put forth by the Learned Counsel for the first Respondent, the Petitioner in I.A.No.384 of 2016, third party in O.S.No.376 of 2007, is rejected in the light of the above mentioned circumstances.
In the result, this Civil Revision Petition is allowed. The I.A.No.384 of 2016 in O.S.No.376 of 2007 on the file of the Learned District Munsif, Madurantakam, filed by the third party to the proceedings in O.S.No.376 of 2007 seeking to set aside the exparte decree, by filing the petition to condone the delay of 1893 days in filing the petition to condone the delay is dismissed.
The Civil Revision Petition filed by the Decree Holder in Execution Petition is allowed. The order dated 07.03.2019 passed by the Learned District 14/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 Munsif, Madurantakam, in I.A.No.384 of 2016 filed by the third party to the suit in O.S.No.376 of 2007 to condone the delay of 1893 days is set aside. The Learned District Munsfi, Madurantakam, is directed to proceed with the EP and dispose of the EP within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
26.08.2022 Index:Yes/No Internet:Yes/No dna To The District Munsif, Madurantakam.
15/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 SATHI KUMAR SUKUMARA KURUP,J., dna Pre-Delivery Order made in CRP.(NPD).No.839 of 2021 and CMP.No.11586 of 2022 26.08.2022 16/16 https://www.mhc.tn.gov.in/judis CRP.(NPD)No.839 of 2021 17/16 https://www.mhc.tn.gov.in/judis