Madras High Court
D.G.R.Narasimman vs Tmt.Bhavani ... 1St on 23 July, 2015
Author: M.Duraiswamy
Bench: M.Duraiswamy
Reserved on : 13.07.2015 Delivered on : 23.07.2015 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:23.07.2015 CORAM: THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(PD).Nos.3681 & 3682 of 2013 and M.P.No.1 of 2013 D.G.R.Narasimman ... Petitioner in both C.R.Ps Vs. 1.Tmt.Bhavani ... 1st Respondent in C.R.P.No.3681/2013 & Sole Respondent in C.R.P.No.3682/2013 2.Vijayaragavan @ Vijiyan 3.Murugan 4.L.Srinivasan 5.L.Kumar 6.Latha @ Pushpalatha 7.Kothandan 8.Ammu @ Dhanalakshmi ... Respondents 2 to 8 in C.R.P.No.3681/2013 (Petitioner has given up the respondents 2 to 8 in the above C.R.P.) C.R.P.(PD).No.3681 of 2013 filed under Article 227 of the Constitution of India to strike off the plaint in O.S.No.204 of 2013 pending on the file of the Subordinate Judge, Ranipet. C.R.P.(PD).No.3682 of 2013 filed under Article 227 of the Constitution of India against the petition and order passed in I.A.No.386 of 2013 in O.S.No.204 of 2013 on the file of the Subordinate Judge, Ranipet, dated 18.07.2013. For Petitioner : Mr.V.Lakshminarayanan, (in both C.R.Ps) for Mr.A.Gouthaman For Respondents : Mr.S.R.Rajagopal (R1 in C.R.P.No.3681/2013 and Sole Respondent in C.R.P.No.3682/2013) C O M M O N O R D E R
C.R.P.(PD).No.3681 of 2013 has been filed by the 1st defendant in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet to strike off the plaint in O.S.No.204 of 2013.
2.C.R.P.(PD).No.3682 of 2013 has been filed by the 1st defendant in O.S.No.204 of 2013 challenging the order passed in I.A.No.386 of 2013 in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet.
3.The plaintiff filed the suit in O.S.No.204 of 2013 for partition and for permanent injunction. The application in I.A.No.386 of 2013 was filed by the plaintiff to stay all further proceedings in E.P.No.50 of 2009 in O.S.No.144 of 2004 on the file of the District Munsif Court, Sholinghur till the disposal of the suit in O.S.No.204 of 2013.
4.The brief facts necessary for the disposal of the above Civil Revision Petitions are as follows:
(i)One Saradammal wife of Dharma Reddy and her son Lakshmipathi executed a registered Simple Mortgage Deed dated 15.03.1974 in respect of the suit properties in favour of one Lakshmi Ammal wife of Chockalingam. The said Saradammal died leaving behind the respondents herein as her legal heirs. Since the said Saradammal and Lakshmipathi failed to re-pay the mortgage debt, the said Lakshmi Ammal filed a suit in O.S.No.241 of 1987 on the file of the District Munsif Court, Sholinghur for realisation of Rs.6,500/- with interest. On 12.10.1988, the suit was decreed. Pursuant to the decree passed in O.S.No.241 of 1987, Lakshmi Ammal filed an Execution Petition in E.P.No.31 of 1991 and brought the suit properties for sale.
(ii)In the sale held on 27.11.1991 by Court auction, the petitioner/1st defendant was the highest bidder, hence, he was declared as the successful bidder in respect of the suit properties. Thereafter, the 3rd respondent/3rd defendant's mother Bai Ammal filed an application in I.A.No.934 of 1991 in O.S.No.241 of 1987 to set aside the ex-parte decree. The said application was allowed by the trial Court and aggrieved over the same, Lakshmi Ammal preferred a Civil Revision Petition in C.R.P.No.3620 of 1991 before this Court and this Court allowed the Civil Revision Petition and set aside the order passed by the District Munsif Court, Sholinghur. Hence, the decree passed in O.S.No.241 of 1987 became final.
(iii)Subsequently, the 3rd respondent/3rd defendant's mother Bai Ammal also filed an application in E.A.No.41 of 1992 in E.P.No.31 of 1991 in O.S.No.241 of 1987 to set aside the Court auction held on 27.11.1991 on the ground of material irregularities in conducting the sale. However, the said application was dismissed as not pressed on 21.01.1993. Thereafter, the 3rd respondent/3rd defendant filed an application in E.A.No.340 of 1993 in E.P.No.31 of 1991 to recognize him as the sole legal representative of his deceased mother Bai Ammal and also filed a petition in E.A.No.341 of 1993 praying not to confirm the sale held on 27.11.1991. He also filed another petition in E.A.No.342 of 1993 to restore the application in E.A.No.41 of 1992. The Execution Court dismissed all the applications on 09.04.1996 and the sale was confirmed on the same day.
(iv)It is the case of the petitioner/1st defendant that since his counsel had died after the confirmation of the sale, he could not file the Execution Petition for taking delivery within one year from the date of confirmation of the sale. Therefore, the 1st defendant filed a suit in O.S.No.144 of 2004 on the file of the District Munsif Court, Sholingur for recovery of possession as against the respondents. In the said suit, the plaintiff in O.S.No.204 of 2013 was a party.
(v)The plaintiff contested the suit and after trial, the trial Court decreed the suit on 30.12.2005. Aggrieved over the judgment and decree of the trial Court, the 1st respondent/plaintiff filed an appeal in A.S.No.62 of 2006 on the file of the Subordinate Court, Ranipet and the Lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal on 18.09.2007. Aggrieved over the same, the respondents also filed Second Appeal in S.A.No.569 of 2008 before this Court and this Court also confirmed the judgments and decrees of the Courts below and dismissed the Second Appeal on 24.04.2009. Aggrieved over the same, the respondents also filed a Special Leave Petition before the Hon'ble Supreme Court and the same was also dismissed.
(vi)Thereafter, the revision petitioner/1st defendant filed an Execution Petition in E.P.No.50 of 2009 in O.S.No.144 of 2004 on the file of the District Munsif Court, Sholinghur. On 22.06.2010, the 1st respondent/ plaintiff filed an application in E.A.No.109 of 2010 in E.P.No.50 of 2009 in O.S.No.144 of 2004 under Section 47 of the Civil Procedure Code. The revision petitioner/1st defendant filed his counter and is contesting the application. Thereafter, in the year 2013, the 1st respondent filed the present suit in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet for partition. In the said suit, the 1st respondent/ plaintiff obtained an order of interim stay of all further proceedings in E.P.No.50 of 2009 in O.S.No.144 of 2004 in I.A.No.386 of 2013.
5.From the above, it is clear that the 1st respondent/plaintiff is simultaneously prosecuting the suit in O.S.No.204 of 2013 and also Section 47 application filed in the Execution Petition. It is not in dispute that the 1st respondent was a party in O.S.No.241 of 1987 on the file of the District Munsif Court, Sholinghur and the decree passed therein is binding on her. Even in the subsequent suit filed by the revision petitioner for recovery of possession in O.S.No.144 of 2004 on the file of the District Munsif Court, Sholinghur, the 1st respondent/ plaintiff was the 4th defendant in that suit. The said suit was also decreed in favour of the revision petitioner on 30.12.2005. Therefore, the decree passed in O.S.No.144 of 2004 is also binding on the 1st respondent/ plaintiff. The revision petitioner was the successful bidder in the Court auction held on 27.11.1991 in respect of the suit properties. The applications filed by the parties to set aside the sale were dismissed by the Execution Court. Thereafter, the sale was confirmed in favour of the revision petitioner on 09.04.1996. The decree passed in O.S.No.144 of 2004 was also confirmed by this Court in S.A.No.569 of 2008 and also by the Hon'ble Supreme Court.
6.On a perusal of the plaint filed in O.S.No.204 of 2013, it is clear that the 1st respondent has not divulged the entire facts and in fact, she had suppressed material facts in her plaint. Though the revision petitioner was declared as the successful bidder in the Court auction held on 27.11.1991, he is not in a position to take possession of the properties even after nearly 24 years.
7.Mr.V.Lakshminarayanana, the learned counsel appearing for the petitioner, in support of his contentions, relied upon the following judgments:
(i)(1973) 2 Supreme Court Cases 467 [Harnandrai Badridas Vs. Debidutt Bhagwati Prasad and others] wherein the Hon'ble Supreme Court held as follows:
It is important to remember that after the decision of the Privy Council in Ganapathy's case (supra) [Ganapathy Vs. Krishnamachariar 45 IA 54 : AIR 1917 PC 121], there has been an amendment of Section 47 as a result of which the purchaser at a sale in execution of a decree, whether he is the decree-holder or not, is unquestionably a party to the suit for the purpose of Section 47. Having regard to this, all questions arising between the auction-purchaser and the judgment-debtor must in our view be determined by the executing Court and not by a separate suit.
(ii)(2008) 3 Supreme Court Cases 233 [Mohd. Hussain (Dead) by LRS. and others Vs. Occhavlal and others] wherein the Hon'ble Supreme Court held as follows:
In N.K.Mohd. Sulaiman Sahib V. N.C. Mohd. Ismail Saheb [AIR 1966 SC 792] this Court in para 14 observed as follows: (AIR p.796) 14.Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion. (emphasis supplied) From a bare reading of the aforesaid observation of this Court in the abovementioned decision, it is clear that ordinarily the Court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii)The Court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons interested are not brought on record.
(iii)AIR 1942 Mad 28 [Swaminatha Pillai Vs. Krishna Padayachi and ors.] wherein this Court held as follows:
Even if it were to be assumed that the appellant's action in obtaining a transfer of the decree in the name of Murugesa was justifiable and that he can be regarded as an innocent party this would not held the appellant. The principle stated in Lick-barrow v. Mason (1787) 2 T.R. 63 : 100 E.R. 35 would then apply. Wherever one of two innocent persons has to suffer by the act of a third person the person who has enabled the third person to occasion the loss must sustain it. The appellant certainly allowed Murugesa to hold himself out as the holder of this decree and having done so he cannot be preferred to the respondent who bought the decree for valuable consideration and in full good faith. The appellant has only himself to blame for the position in which he finds himself. He could have avoided having to pay the decreetal amount twice over, as he now has got to do, if he had not attempted to get round the provisions of Order 21, Rule 16. We consider that the decision of King, J., is in accordance with law and consequently this appeal must be dismissed with costs in favour of the first respondent.
8.Mr.S.R.Rajagopal, learned counsel appearing for the 1st respondent submitted that the revision petitioner has not made out a ground to strike off the plaint and that the order passed by the trial Court in I.A.No.386 of 2013 is just and proper.
9.In support of his contention, the learned counsel relied upon the judgment reported in 2015 (3) CTC 485 [T.K.Chithran and another Vs. C.Samsari @ Chithran and others] wherein a Madurai Bench of this Court held as follows:
From the above decision, it is clear that power under Article 227 of the Constitution of India has to be exercised sparingly and only in appropriate cases, where judicial conscience of this Court dictates it to act lest a gross failure of justice would occasion. This Court in exercise of power under Article 227 of the Constitution of India having Supervisory jurisdiction will not convert itself into an Appellate Court and appreciate or evaluate the facts by itself and draw inference. In my considered view, the remedy open to the Petitioner is to move the same Court where the Suits are filed under Order 7, Rule 11 of the Code of Civil Procedure and make out the applicability of the ingredients of the said Rule. Without doing so, the Petitioners cannot be permitted to rush to this Court.
10.Under Section 47 of the Civil Procedure Code, all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Further, all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree.
11.When the 1st respondent/plaintiff has filed Section 47 application in E.A.No.109 of 2010 in E.P.No.50 of 2009, she also filed the present suit in O.S.No.204 of 2013 for partition claiming one-fourth share and also obtained stay of all further proceedings in E.P.No.50 of 2009. As already stated, the 1st respondent/plaintiff has not stated the entire facts in the plaint and in fact, she has suppressed material facts. The order of interim stay granted by the trial Court is erroneous. When the 1st respondent/ plaintiff has filed the Section 47 application in the year 2010 itself, she could have prosecuted the said application, instead, she had filed the suit in the year 2013 for partition suppressing the material facts.
12.The judgments relied upon by the learned counsel for the petitioner squarely applies to the facts and circumstances of the present case. If the jurisdiction of this Court is not exercised in this case under Article 227 of the Constitution of India, it will result in gross failure of justice.
13.In these circumstances, I am of the considered view that the plaint in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet should be struck off and the order passed in I.A.No.386 of 2013 in O.S.No.204 of 2013 is liable to be set aside. Accordingly, the plaint in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet is struck off and the order passed in I.A.No.386 of 2013 in O.S.No.204 of 2013 on the file of the Subordinate Court, Ranipet is set aside.
14.In the result, the Civil Revision Petitions are allowed. No costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes/No 23.07.2015
Internet : Yes/No
va
Note: Issue copy of the order by 27.07.2015.
To
The Subordinate Judge,
Ranipet.
M.DURAISWAMY,J.
va
Order made in
C.R.P.(PD).Nos.3681 & 3682 of 2013
and M.P.No.1 of 2013
23.07.2015