Madras High Court
Jeyakanthan vs Selvanathan on 31 January, 2018
Author: R. Tharani
Bench: R. Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 31.01.2018
RESERVED ON: 10.01.2018
DELIVERED ON : 31.01.2018
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.R.P(NPD)(MD)No.698 of 2007
and
M.P.(MD)No.1 of 2007
Jeyakanthan .. Petitioner
Vs.
1.Selvanathan
2.Ganesan .. Respondents
Prayer :Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order of the executing Court dated
29.03.2007 the Principal District Munsif Court, Pudukottai in EASR No.460 of
2007, dated 29.03.2007 in E.P.No.31 of 2006 in R.C.O.P.No.11 of 1997.
!For Petitioner : Mr.V.Singam
^For Respondent No.1 : No Appearance
For Respondent No.2 : No Appearance
:ORDER
The petitioner filed the above Civil Revision Petition, challenging the order of the executing Court the Principal District Munsif Court, Pudukottai in EASR No.460 of 2007, dated 29.03.2007 in E.P.No.31 of 2006 in R.C.O.P.No.11 of 1997.
2.The learned counsel for the petitioner submitted that the lower Court has omitted to note that the execution petition in E.P.No.31 of 2006 in R.C.O.P.No.11 of 1997 is not legally constituted and the first respondent is no longer a landlord to institute the execution petition. The proper person is only the revision petitioner who has already acquired interest in the property by means of sale agreement and have obtained constructive possession from the second respondent for consideration. There is no right to survive to the E.P. petitioner. He would further submit that the lower Court has failed to consider that the petitioner has got the right to record full satisfaction of the execution and also failed to note that there is discrepancy in the description of the property and the proceedings is unnecessary and void.
3.On side of the petitioner, it is stated that the agreement to transfer is enough for the petitioner to receive the possession of the property and by the agreement, the petitioner is stepping into the shoes of the first respondent.
4.The learned counsel for the petitioner relied upon the judgment of the Supreme Court in the case of Jugalkishore Saraf v. Raw Cotton Co. Ltd reported in AIR 1955 SC 376 has held as follows:
? To attract the application of the principle of equitable assignment of decree there must be an agreement to transfer the decree to be passed in future. As soon as the decree is passed equity fastens upon it and, by treating as done what ought to be done, that is, by assuming that the transferor has executed a deed transferring the decree to the transferee as in all conscience he should do, equity regards the transferee as the beneficial owner of the after-acquired decree. The equitable principle only implements or effectuates the agreement of the parties. This equity does not, however, take upon itself the task of making any new agreement for the parties either by filling up the lacuna or gap in their agreement or otherwise. If, therefore, there is no agreement between the parties to transfer the future decree the equitable principle cannot come into play at all.?
5.He further relied upon the judgment of this Court in the case of Manavar Basha and others v. V.Narayanan and another reported in 1961 2 MLJ has held as follows:
?The purchasers of immovable property in the occupation of a tenant get transferred to themselves all the rights of the lessor under Section 109 of the Transfer of the Property Act and are entitled to enforce an order of eviction obtained by their vendor against the tenant. The attornment of the tenant to the purchaser has no impact on the lease except for the substitution of one landlord another and the terms and incidents of the lease continue to operate as before the attornment. It does not bring about a new tenancy or lease.?
6.Since the exparte is also an order on merits, we call for the records from the lower Court. This Court has verified the records. A perusal of records, reveals that E.P.No.31 of 2006 in R.C.O.P.No.11 of 1997 has been filed before the learned Principal District Munsif, Pudukottai upon which the first respondent herein one selvanathan's address was stated as 101/B, Tharani Square, Maraimalai Nagar Post, Perambalur, Cengalpattu District and his present address was stated that No.35, South Gangai Amman Koil Street, Choolaimedu, Chennai. In the sale agreement, said to have been executed by the first respondent/landlord, the address of the first respondent/landlord is stated as 101/B, Tharani Square, Maraimalai Nagar Post, Perambalur, Cengalpattu District. Though the above said address was stated in this petition, the petitioner has sent notice only to the address No.35, South Gangai Amman Koil Street, Choolaimedu, Chennai. Though all the address denotes that the first respondent is residing in Chennai, the public publication was given only in ?Thinamalar? dated 09.03.2012 in Trichy edition. Hence, the absence of the first respondent cannot be treated as adverse against him.
7.A perusal of the lower Court records, reveals that this petitioner has filed a copy of the sale agreement before the execution Court which denotes that there is a balance of sale consideration of Rs.50,000/- (Rupees Fifty Thousand only) to be paid to the first respondent/landlord. It is stated that there is litigation pending between the first respondent and the petitioner in O.S.No.182 of 2006 for specific performance. So admittedly, the petitioner has not obtained the sale deed from the seller and validity of the sale agreement is yet to be decided in O.S.No. 182 of 2006. Until the result of the original side in his favour, there is no locus standi for this petitioner to file this petition for terminating the execution application. Only after the disposal of the suit in his favour, after payment of balance of sale consideration and after the execution of sale deed, the petitioner can claim the right against the first respondent/landlord. Hence, at the present state, the petitioner has no locus standi to interfere the execution petition filed by the first respondent.
8.In fine, this Civil Revision Petition is dismissed. No Costs. Consequently, connected miscellaneous petition is closed.
To The learned Principal District Munsif, Pudukottai. .