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[Cites 5, Cited by 2]

Madras High Court

A.Govindasamy .. 1St vs S.Saravanakumar on 17 February, 2014

Author: P.R.Shivakumar

Bench: P.R.Shivakumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  17.02.2014

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

C.R.P.(NPD) Nos.3842 of 2012, 
2480 of 2013  and 4258 of 2013
and
M.P.Nos.1 of 2012 and 1 of 2013
			
1.A.Govindasamy			..	1st Petitioner in C.R.P.(NPD)
							No.3842 of 2012

2.G.Pushpavalli				..	2nd Petitioner in C.R.P.(NPD)
							No.3842 of 2012 and sole
							petitioner in C.R.P.(NPD)
							Nos.2480 and 4258 of 2013

Vs.


S.Saravanakumar			 ..	Respondent in all the CRPs

Prayer in C.R.P.(NPD) No.3842/2012
Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the Fair and Decreetal Order dated 23.08.2012 made in C.F.R.No.19436 of 2012 in E.A.No.314 of 2011 in E.P.No.80 of 2009 in O.S.No.1228 of 1995 on the file of the court of II Additional Subordinate Judge, Coimbatore (Executing Court).
Prayer in C.R.P.(NPD) No.2480/2013
Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and final order dated 29.10.2012 made in I.A.No.136 of 2012 and I.A.No.615 of 2010 in O.S.No.1228 of 1995 on the file of the court of I Additional Subordinate Judge, Coimbatore.
Prayer in C.R.P.(NPD) No.4258/2013
Civil Revision Petition filed under Section 115 of CPC to set aside the fair and decreetal order dated 05.09.2013 made in I.A.No.615 of 2010 in O.S.No.1228 of 1995 by the learned I Additional Subordinate Judge, Coimbatore
			For Petitioners	: Mr.M.Venkatachalapathy,
			in all the CRPs	  Senior Counsel for
						  Mr.N.Srinivasan

			For Respondents	: Mr.K.Ramu
			in all the CRPs


COMMON ORDER

Govindasamy and Pushpavalli, who are the petitioners in C.R.P.(NPD) No.3842 of 2012, are husband and wife. S.Saravanakumar, is the sole respondent in all the three civil revision petitions. C.R.P.(NPD) Nos.2480 of 2013 and 4258 of 2013 are the revisions filed by Pushpavalli alone, whereas C.R.P.(NPD) No.4258 of 2013 is the revision filed by Govindasamy, husband of Pushpavalli and Pushpavalli herself.

2. The suit property, namely a vacant site, having an extent of about 5 cents along with a 5 feet wide common passage on the north of the said piece of land and also a 6 feet wide common passage on the west of Govindasamy's property belonged to Pushpavalli, the second petitioner in C.R.P.(NPD) No.3842 of 2012/the sole petitioner in the other two civil revision petitions, by virtue of a purchase made by her under a registered sale deed dated 11.09.1975 bearing Document No.3348/1975 registered in the office of the District Registrar, Coimbatore. The property thus purchased by her did have the following measurements:

" On the North : East-west 49' On the South : East-west 49' On the West : North-south 42<' On the East : North-south 46<' The common passage running east-west on the north-south of the said property and south of the property of her husband Govindasamy was a 5 feet wide, whereas the north-south common passage on the west of Govindasamy's property was 6 feet wide. "

3. As per the said sale deed, the above said common passage running east-west in between the properties of Govindasamy and his wife Pushpavalli, 6 feet wide passage running on the west of the Govindasamy's property, which connects the street and the above said east-west common passage were also left to be jointly enjoyed by Govindasamy and his wife Pushpavalli.

4. The said property as purchased by Pushpavalli under the above said sale deed dated 11.09.1975, is the subject matter of the suit in O.S.No.1228/1995, which was tried on the file of the I Additional Subordinate Judge, Coimbatore. The said suit came to be filed by the respondent Saravanakumar against Pushpavalli (second petitioner in C.R.P.No.3842/2012 and sole petitioner in C.R.P.Nos.2480 and 4258/2013) for the relief of specific performance based on a written suit sale agreement dated 02.09.1994 entered into between the said Pushpavalli and the respondent Saravanakumar. The defendant in the said suit, namely Pushpavalli, failed to contest the suit, as a result of which, an ex-parte trial was conducted and a decree granting the relief of specific performance directing execution of sale deed in accordance with the agreement for sale and also for handing over possession of the property to the respondent herein/plaintiff came to be passed on 12.08.1997.

5. After the passing of the decree, Saravanakumar, the respondent herein/decree holder (plaintiff) levied execution by filing E.P.No.149/1999. Since the judgment debtor failed to contest the execution petition also and did not execute the sale deed in compliance with the decree, the sale deed was executed by the executing court, namely the II Additional Subordinate Judge, Coimbatore on 16.12.2002 and the same was registered as Document No.387/2003 on the file of the Sub Registrar, Peelamedu, Coimbatore. Thereafter, the respondent herein/decree holder filed E.P.No.89/2009 for delivery of possession. Only in the said execution petition, the judgment debtor Pushpavalli, entered appearance and filed a counter contending that the execution petition was barred by limitation; that the decree was not executable and that the execution petition was an abuse of process of law. All those pleas were made based on the contention of the judgment debtor Pushpavalli that the decree was obtained on a fabricated sale agreement.

6. The learned judge of the Executing Court, namely the II Additional Subordinate Judge, Coimbatore, after hearing, passed an order on 23.02.2011 directing delivery of the suit property to the respondent herein/decree holder under Order XXI Rule 35 of the Code of Civil Procedure. When delivery was sought to be effected through process of court, it was found that the north-south passage providing access to the suit property, which is on the rear side of the property of Govindasamy, was blocked by a new structure put up by Govindasamy and he also provided an obstruction for the execution of the decree. Hence the decree holder filed an application in E.A.No.314/2011 in E.P.No.89/2009 in O.S.No.1228/1995 against the judgment debtor and her husband Govindasamy, the obstructor for the removal of obstruction under Order XX1 Rule 35(3) and 97 of CPC r/w Section 151 CPC.

7. The first revision petitioner in C.R.P.(NPD) No.3842/2012, namely Govindasamy, the husband of the judgment debtor, filed a counter statement in the said execution application and the same was adopted by his wife Pushpavalli, the judgment debtor. In the said counter statement, he had contended that the judgment debtor had borrowed a sum of Rs.50,000/- from one M.P.Subramaniam, the father of the decree holder; that at that point of time, he obtained signatures of the judgment debtor on blank stamp papers on 06.06.1993 along with the title deeds and that the same were used for fabricating the suit agreement as if it was entered into on a subsequent date, namely 02.09.1994. It was also contended that the decree being an ex-parte decree, an application to set aside the ex-parte decree and an application to set aside the ex-parte order passed in E.P.No.149/1999 had been filed. It was contended further in the said counter statement that, Pushpavalli, the judgment debtor had purchased the rear portion of the property without any passage from her vendor; that no passage existed from the property of Govindasamy to reach the property purchased by his wife Pushpavalli; that the alleged encroachment and obstruction are not correct and that hence the execution application for the removal of the obstruction should be dismissed.

8. Besides filing such a counter statement, Govindasamy also filed an application in C.F.R.No.19436 of 2012 in E.A.No.314 of 2011 in E.P.No.80 of 2009 in O.S.No.1228 of 1995 for appointment of an Advocate-Commissioner to note down the physical features of the petition mentioned property and to take necessary photographs with the assistance of a qualified photographer and also to ascertain the age of the workshop located on the western side of his building with a qualified engineer. The learned II Additional Subordinate Judge, after hearing, rejected the said application filed by Govindasamy. As against the said order rejecting the application filed by Govindasamy, the obstructor, who is none other than the husband of the judgment debtor, both Govindasamy/obstructor and his wife Pushpavalli (judgment debtor) have chosen to prefer C.R.P.(NPD) No.3842 of 2012.

9. The judgment debtor chose to keep quiet till the second execution petition seeking delivery of possession came to be filed and an order came to be passed on 23.02.2011 directing delivery of possession of the suit property and she did not file any application to set aside the ex-parte decree till then. Only after the filing of the second execution petition, namely E.P.No.89/2009 for recovery of possession, the judgment debtor Pushpavalli chose to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree dated 12.08.1997 along with an application under Section 5 of the Limitation Act, 1963, to condone the delay of 4137 days in filing the application to set aside the ex-parte decree. The application filed under Section 5 of the Limitation Act, 1963. Though such an application came to be filed on 7.1.2009 itself, no written statement was filed along with the said application. Hence the said application was returned for several times and the said application was taken on file as I.A.No.615/2010 in O.S.No.1228 of 1995 on the file of the I Additional Subordinate Judge, Coimbatore (the trial court). Subsequently, nearly after 21 months, a written statement came to be filed on 9.11.2010.

10. In the said application in I.A.No.615/2010, the decree holder Saravanakumar filed a counter statement contending that the petitioner who had full knowledge of the proceedings, deliberately omitted to contest the case and also the execution petition and that the belated application was an attempt at protracting the case and preventing the decree holder from enjoying the fruits of the decree for ever. After the decree holder filed such a counter, the judgment debtor Pushpavalli filed another application as I.A.No.136/2012 for extensive amendments in the affidavit filed in support of I.A.No.615/2010. Such amendments themselves run to five pages. The said application was resisted by the decree holder by filing a counter. The learned I Additional Subordinate Judge, Coimbatore (Trial Judge), after hearing, dismissed the said application I.A.No.136/2012 seeking amendment of the affidavit filed in I.A.No.615/2010 holding that such a petition was not maintainable. As against the said order, the judgment debtor Pushpavalli has filed C.R.P.(NPD) No.2480 of 2013.

11. I.A.No.615/2010 filed under Section 5 of the Limitation Act, 1963 to condone the delay of 4137 days in filing the application under Order IX Rule 13 CPC, was dismissed after enquiry by a detailed order by learned trial judge (I Additional Subordinate Judge, Coimbatore) by order dated 05.09.2013. As against the said order, the judgment debtor/defendant Pushpavalli has preferred C.R.P.(NPD) No.4258/2013.

12. In all the three civil revision petitions, the respondent/decree holder, has entered appearance through counsel. The arguments advanced by Mr.M.Venkatachalapathy, learned senior counsel appearing on behalf of Mr.N.Srinivasan, counsel on record for the revision petitioners in C.R.P.(NPD) No.3842 of 2012 and the sole revision petitioner in the other two civil revision petitions, and also the arguments advanced by Mr.K.Ramu, learned counsel for the sole respondent in all the three civil revision petitions/decree holder/ plaintiff are heard. The materials produced on both sides are aslo perused.

13. The decree holder in O.S.No.1228/1995 decided by the I Additional Subordinate Judge, Coimbatore, which was a suit for specific performance of an agreement for sale is the respondent in all the three civil revision petitions. The judgment debtor in the said suit, namely Pushpavalli, is the second petitioner in C.R.P.(NPD) No.3842 of 2012 and the sole petitioner in the other two civil revision petitions, namely C.R.P.(NPD) Nos.2480 of 2013 and 4258 of 2013. The third party/obstructor, who is none other than the husband of the judgment debtor is the first petitioner in C.R.P.(NPD) No.3842 of 2012. C.R.P.(NPD) No.3842 of 2012 has been filed against the order of the Executing Court, namely the II Additional Subordinate Judge, Coimbatore dated 23.08.2012 dismissing the unnumbered execution application in C.F.R.No.19436 of 2012 in E.A.No.314 of 2011 in E.P.No.80 of 2009 in the above said original suit. The other two civil revision petitions have been filed against orders of the trial judge

(i) C.R.P.(NPD) No.2480/2013 has been filed by the judgment debtor against the order of I Additional Subordinate Judge, Coimbatore dated 29.10.2012 dismissing the I.A.No.136/2012, an application filed to amend the affidavit filed in support of I.A.No.615/2010, an application filed under Section 5 of the Limitation Act, 1963 for condoning the delay of 4137 days in filing the application under Order IX Rule 13 CPC to set aside the ex-parte decree passed in O.S.No.1228/1995.

(ii) C.R.P.(NPD) No.4258/2013 has been filed by the judgment debtor against the order of the trial court, namely I Additional Subordinate Judge, Coimbatore dated 05.09.2013 dismissing I.A.No.615/2010, an application filed under Section 5 of the Limitation Act for condoning the delay of 4137 days in filing the application under Order IX Rule 13 CPC to set aside the ex-parte decree in O.S.No.1228/1995.

14. Though the trial judge and the executing judge are different, since the civil revision petitions pertain to the orders passed on the trial side and also the order passed on the execution side in one and the same suit, all the three civil revision petitions have been jointly heard and are being disposed of by a common order. However, this court, for the sake of convenience deals with C.R.P.(NPD) Nos.2480 of 2013 and 4258 of 2013 at first and then C.R.P.(NPD) No.3842 of 2012.

C.R.P.(NPD) Nos.2480 of 2013 and 4258 of 2013

15. These revision petitions have been filed by Pushpavalli, the defendant in O.S.No.1228/1995, who suffered an ex-parte decree dated 12.08.1997 on the file of the I Additional Subordinate Judge, Coimbatore. The said suit was filed by Saravanakumar, the sole respondent, for the relief of specific performance on the basis of the suit sale agreement dated 02.09.1994. It is not in dispute that the subject matter of the agreement, namely the suit property, belonged to the judgment debtor/defendant Pushpavalli, as she had purchased the same from Ammani Ammal and others under a sale deed dated 11.09.1975 registered as Document No.3348/1975 in the office of the District Registrar, Coimbatore. It is also not in dispute that the suit sale agreement contains the signature of the judgment debtor/defendant Pushpavalli as vendor. However, it has been contended by the judgment debtor/defendant that the said agreement for sale is not a genuine one; that at no point of time, she agreed for selling the suit property for a sum of Rs.1,15,000/- as found in the suit sale agreement and also as claimed by the respondent herein/decree holder/plaintiff; that on the other hand, she had borrowed a sum of Rs.50,000/- from the father of the respondent/father of the plaintiff and at the time of borrowal, the father of the respondent/father of the plaintiff got the signature of the revision petitioner/defendant in blank stamp papers and that using the said blank stamp papers containing the signature of Pushpavalli, the suit sale agreement came to be concocted and fabricated. However, before filing of the suit, the respondent herein/plaintiff issued a pre-suit notice on 23.02.1995 calling upon the revision petitioner/defendant Pushpavalli to come and execute the sale deed after receiving the balance amount of sale consideration. Though the revision petitioner/defendant received the said notice, she did not send any reply; nor did she come forward to comply with the demand made in the notice. Hence the respondent herein/plaintiff chose to file the suit on 01.09.1995 praying for the relief of specific performance and in the alternative for the refund of advance amount of Rs.90,000/- paid by him together with interest on the same from the date of agreement upto the date of filing of the suit at the rate of 18% per annum and also a sum of Rs.7,500/- towards damages.

16. The said suit was taken on file by the I Additional Subordinate Judge, Coimbatore as O.S.No.1228/1995. After service of summons, the revision petitioner/defendant Pushpavalli made appearance by engaging M/s.P.Rajamani and N.R.Sampath as her counsel. For more than 21 months, she was taking time for filing written statement and since she failed to file written statement within the time initially granted and subsequently extended by the trial court, she was set ex-parte and ex-parte trial was conducted and an ex-parte decree granting the main relief, namely relief of specific performance directing execution of sale deed came to be passed on 12.08.1997. Purusant to the decree, the respondent herein/plaintiff deposited the balance sale consideration into court and levied execution by filing E.P.No.149/1999 on the file of the executing court, namely the II Additional Subordinate Judge, Coimbatore. Again notice was served on the revision petitioner/judgment debtor/defendant in the said execution petition and she entered appearance by engaging a counsel. However, she failed to file counter in the said execution petition. Accordingly she was set ex-parte and an order came to be passed directing execution of the sale deed. Since judgment debtor did not come forward to execute the sale deed in accordance with the order of the executing court, sale deed was executed on 16.12.2002 in favour of the respondent herein/decree holder by the court itself on behalf of the revision petitioner/Pushpavalli, the judgment debtor and the same was registered as Document No.387/2003 on the file of the Sub Registrar, Peelamedu, Coimbatore.

17. Even after the execution of the sale deed, the revision petitioner/judgment debtor Pushpavalli did not take any steps to get the ex-parte decree set aside till she received notice in the second execution petition, namely E.P.No.89/2009 filed for directing delivery of possession in accordance with the sale deed. In the meantime, after more than 11 years from the date of passing of the ex-parte decree and about 7 years from the date of execution of the sale deed by the court, the revision petitioner/judgment debtor Pushpavalli chose to file the application under Order IX Rule 13 CPC along with an application under Section 5 of the Limitation Act with defects. The same was returned and re-presented several times and at last, they were re-presented after rectifying defects on 09.09.2010 and the application under Section 5 of the Limitation Act was taken on file as I.A.No.615 of 2010. Meanwhile, she entered appearance in E.P.No.89/2009 and filed a counter contending that the decree could not be executed, as it was obtained based on a fabricated agreement for sale.

18. In the affidavit filed in support of I.A.No.615/2010, she had stated that she came to know about the execution of the sale deed by the executing court only recently before the filing of the said application; that by then the matter had been amicably settled between her and the father of the respondent herein/father of the decree holder and that under the said circumstances, there occurred a delay of 4137 days in filing the application under Order IX Rule 13 CPC to set aside the ex-parte decree passed against her. It was also contended therein that she did not execute any agreement for sale; that there was only a loan transaction under which she borrowed a sum of Rs.50,000/- from the father of the respondent/father of the plaintiff; that at that point of time her signature in blank stamp papers were obtained and her original title deed was also obtained by the father of the respondent herein/father of the plaintiff and that after the passing of the ex-parte decree by virtue of a compromise she paid the entire amount due to the father of the respondent herein/father of the plaintiff on 28.05.1998, in the presence of Arunagirinathan, Arumugam and Ramasamy. Based on the said contentions she had prayed for an order condoning the delay of 4137 days in filing the application to set aside the ex-parte decree passed against her on 12.08.1997 in O.S.No.1228/1995.

19. The said application was resisted by the respondent herein/decree holder refuting the averments made in the affidavit filed in support of the application, besides contending that the revision petitioner/judgment debtor did have notice on several occasions pursuant to which she entered appearance through counsel, but failed to contest the suit and the execution proceedings and that the delay of more than 11 years in filing the application to set aside the ex-parte decree was not explained with satisfactory reasons. After having filed such an application in I.A.No.615/2010 to condone the delay of 4137 days in filing the application to set aside the ex-parte decree, in which the respondent herein/decree holder had filed a counter, the revision petitioner herein/judgment debtor/defendant, with a view to protract the case further, chose to file another application I.A.No.136/2012 for amendment of the affidavit filed in support of the application in I.A.No.615/2010. In the affidavit filed in support of I.A.No.136/2012, besides traversing on the merits of the case, the revision petitioner/judgment debtor/defendant had also stated that, since she was not well when the affidavit prepared by her advocate had been sent to her for her signature, she affixed her signature in the affidavit filed in I.A.No.615/2010, without clearly understanding the meaning of the contents therein and that therefore, it had become necessary to allow her to amend the affidavit filed in I.A.No.615/2010.

20. Normally a solemn declaration made in the affidavit, which was also attested by an advocate, shall not be permitted to be amended. If the deponent of the affidavit wants to make further averments, he/she can seek the permission of the court to file an additional affidavit. Instead of doing it, the revision petitioner/judgment debtor/defendant Pushpavalli chose to file an application to amend the affidavit, a solemn form of statement. It is also pertinent to note that several new facts were sought to be projected by way of amendments and the amendments themselves run to five full pages. More or less, it was aimed at a novation of the averments. The said application was also resisted by the respondent herein/decree holder/plaintiff. After hearing, the learned trial judge, namely the I Additional Subordinate Judge, Coimbatore, held that there was no bonafide in the filing of such an application for amending the solemn document, namely the affidavit and the application was not maintainable. Accordingly, the said application I.A.No.136/2012 was dismissed by the trial court, namely the I Additional Subordinate Judge, Coimbatore, by an order dated 29.10.2012.

21. After hearing the submissions made on both sides, this court does not find any defect or infirmity in the decision of the trial court to dismiss the said application, namely I.A.No.136/2012 filed for amending the affidavit filed in support of I.A.No.615/2010. The attempt made by the revision petitioner/judgment debtor/defendant in filing such an application, was aimed at prolonging the case as long as possible, is obvious from records. Hence, this court comes to the conclusion that the order dated 29.10.2012 passed by the learned trial judge, namely the I Additional Subordinate Judge, Coimbatore dismissing I.A.No.136/2012 does not deserve any interference by this court in exercise of its power of superintendence over the courts below under Article 227 of the Constitution of India, the provision under which, the said civil revision petition has been filed.

22. Similarly, this court does not find any fault with the trial court for passing its order dated 05.09.2013 dismissing I.A.No.615/2010 holding that the inordinate delay of more than 11 years, namely 4137 days, was not properly explained and that the revision petitioner Pushpavalli, who had notice in almost every stage of proceedings did have the practice of first entering appearance and then leaving the matter to be heard ex-parte. In the original suit, in November 1995 itself, the revision petitioner/defendant entered appearance engaging counsel. After taking more than 21 months time, she did not file written statement. Hence an ex-parte decree came to be passed on 12.08.1997. Thereafter, in E.P.No.149/1999 also, she appeared engaging a counsel and later on left the said execution petition to be heard and disposed of ex-parte resulting in the execution of the sale deed on 16.12.2002 by the executing court itself. Even after the sale deed was executed by the court, she waited for about 7 years and only when steps were taken by the respondent herein/decree holder to recover possession based on the sale deed executed by the court, she chose to file an application to set aside the ex-parte decree along with an application under section 5 of the Limitation Act, 1963 to condone the delay of 4137 days in filing the application to set aside the ex-parte decree.

23. In the affidavit filed in support of the application filed under Section 5 of the Limitation Act, 1963, namely I.A.No.615/2010, besides raising contentions on the merits of the suit, she contended that after the passing of the ex-parte decree a compromise was effected between herself and the father of the respondent herein/father of the plaintiff on 28.05.1998 itself, as the reason for her not taking steps in time to set aside the ex-parte decree. It is quite obvious that the first execution petition, namely E.P.No.149/1999 was filed in the year 1999 in which, she entered appearance at the first instance and then left the same uncontested. If at all there could have been any compromise on 28.05.1998 itself as contended by the revision petitioner/judgment debtor/defendant, when she entered appearance in E.P.No.149/1999, she would not have failed to contest the same projecting the alleged compromise between herself and the father of the decree holder, as a plea of defence. The very fact that she remained ex-parte and allowed a sale deed to be executed by the court on 16.12.2002 will make it clear that the reason assigned by the revision petitioner/judgment debtor/defendant Pushpavalli for the delay even after the filing of E.P.No.149/1999, cannot be sustained. Again she had not chosen to give necessary particulars regarding the date on which she came to know that such a decree had been passed and that a sale deed had been executed by the court in favour of the respondent herein/decree holder in the execution of the decree.

24. The inordinate delay of more than 11 years was sought to be explained by simply stating that there was a compromise between herself and the father of the decree holder, without even pleading that the decree holder was involved in that compromise. Even after filing such an application supported by an affidavit, which does not contain acceptable explanations to show that she was prevented by a reasonable cause from filing an application to set aside the ex-parte decree in time, she was not prepared to get on with the enquiry and she made a further attempt by filing I.A.No.136/2012 for amending the affidavit filed in I.A.No.615/2010. The nature of amendments sought for were also discussed supra. After the dismissal of the amendment application I.A.No.136/2012, the learned trial judge, namely the I Additional Subordinate Judge, Coimbatore, by a detailed order dated 05.09.2013, dismissed I.A.No.615/2010 holding that the inordinate delay of 4137 days was not explained with satisfactory reasons. The said order of the learned I Additional Subordinate Judge, which is the subject matter of the challenge made in C.R.P.(NPD) No.4258/2013 filed under Section 115 of the Civil Procedure Code, cannot be assailed as order passed in exercise of the jurisdiction not conferred on the trial court or failing to exercise the jurisdiction conferred on the trial court or an order passed with illegality or material irregularity in exercise of jurisdiction. The findings of the trial court in this regard, cannot be assailed as perverse and it cannot be viewed as an order patently erroneous leading to miscarriage of justice. On the other hand, by the dismissal of the said application I.A.No.615/2010, the learned trial judge has chosen to prevent abuse of process of court. Viewed from any angle, the order passed by the trial court dismissing I.A.No.615/2010 cannot be termed either infirm or defective warranting interference by this court in exercise of its power of revision.

25. For all the reasons stated above, this court comes to the conclusion that C.R.P.(NPD) Nos.2480 of 2013 and 4258 of 2013 are bound to be dismissed and the order dated 29.10.2012 dismissing I.A.No.136/2012 and the Order dated 05.09.2013 dismissing I.A.No.615/2010 are bound to be confirmed.

C.R.P.(NPD) No.3842/2012

26. The obstructor and the judgment debtor, who are husband and wife, are the petitioners in C.R.P.(NPD) No.3842/2012. A sale deed was executed by the Executing Court, namely the II Additional Subordinate Judge, Coimbatore in execution of the decree of specific performance passed in O.S.No.1228/1995 by the I Additional Subordinate Judge, Coimbatore (trial judge) in the earlier execution petition, namely E.P.No.149/1999. Thereafter, the respondent herein/decree holder, filed the second execution petition E.P.No.89/2009 for delivery of possession of the property, which was the subject matter of the suit and subject matter of the sale deed. At that point of time, it was found that the common passage leading to the vacant site conveyed to the respondent herein/decree holder was blocked by a structure with brick walls and tin sheet roofs. Hence the decree holder, who is the respondent herein, filed an application in E.A.No.314/2011 in E.P.No.89/2009 for the removal of the obstruction caused by the revision petitioners in the common passage leading to the vacant site conveyed to the decree holder. The first petitioner in the revision, who chose to file a counter in the said application, raised a contention that there was no access to the vacant site situated on the rear side of Govidasamy's property and that the respondent purchased the property knowing fully well that it had no access from the street. Having filed such a counter, which was adopted by his wife Pushpavalli (the judgment debtor), Govindasamy, the first petitioner in the revision chose to file yet another application in C.F.R.No.19436 of 2012 in E.A.No.314 of 2011 in E.P.No.80 of 2009 on the file of the executing court (II Additional Subordinate Judge, Coimbatore) for appointment of an Advocate-Commissioner to note down the physical features of the suit property, for taking photographs of the same with the help of a photographer and to ascertain, with the help of an engineer, the age of the workshop located on the western side of the building of Govindasamy. The workshop stated to be located on the western side of the building of Govindasamy is nothing but the structure with brick walls and tin sheet roof put up on the common passage running north-south on the west of Govindasamy's property, which has been specifically provided in the sale agreement as well as the sale deed to be the common passage meant for the common use of Govindasamy and the owner of the rear portion, which was conveyed to the respondent herein/decree holder.

27. The very contention made by the revision petitioners that the vacant site situated on the rear side of the property of Govindasamy did not have any access as claimed by the respondent/decree holder, seems to be a malafide and absurd contention. It has been clearly noted in the sale deed dated 11.09.1975, under which the suit property was purchased by Pushpavalli, the second petitioner in the revision, that the suit property lies on the south of the property of Govindasamy and that a 5' wide passage running east-west on the north of the said vacant site purchased under the said sale deed and the connecting north-south 6' wide passage on the west of Govindasamy's property were the common passages for the common enjoyment of Govindasamy and Pushpavalli, the purchaser under the said sale deed. The very same recitals are found in the sale agreement dated 02.09.1994, based on which, the suit for specific performance was filed and a decree as prayed for was obtained by the respondent herein/decree holder. The sale deed executed by the court and registered as Document No.387/2003 in the office of the Sub Registrar, Peelamedu, Coimbatore also contains the very same recitals.

28. For better appreciation the description found in the sale deed dated 11.09.1975 is reproduced hereunder:

" nfhaKj;J}h; hpoL. gPsnkL rg;hpoL. nkw;go jhYf;fh. uhkehjg[uk; fpuhkk;. f/r/322-2 ep/e/v/1/38?f;F U:/9/14/0?y; nf/KUifa;a njthpd; f/r/318 be/fhiyf;F ? tlf;F. V/nfhtpe;jrhkp ,lj;jpw;Fk; ? bjw;F. o/bry;yk;khs; ,lj;jpw;Fk; ? nkw;F. uhn$!;thp tifawh ,lj;jpw;Fk; ? fpHf;F. ,jd; kj;jpapy;.
tlg[wk; fpHnkyo ? 49 mo bjd;g[wk; fpHnkyo ? 49 mo nky;g[wk; bjd;tlyo ? 42?1-4 mo fpHg[wk; bjd;tlyo ? 46?1-4 mo ,e;j mst[s;s 5 brz;l; $hfht[k; ,e;j $hfhtpw;F nghf tu tpl;oUf;Fk; nkw;go $hfhtpw;Fk; V/nfhtpe;jrhkp ,lj;jpw;Fk; tlg[wkhf fpHnkyhft[k; 5 mo mfyj;jpYk; ,jd; nky; bjd;tlyhft[k; 6 mo mfyj;jpYk; cs;s jlj;jpYk; gpujpthjpa[k; V/nfhtpe;jrhkpa[k; V/jpUkiyrhkpa[k; o/bry;yk;khSk; bghJtpy; elf;ft[k;. kpd;rhuk;. rhf;fil. jz;zPh; FHha; tifawh nghl;Lf; bfhs;st[k; tplg;gl;Ls;s nkw;go jlj;ij gpujpthjp bghJthfnt mDgtpj;Jf; bfhs;st[k;. kw;wth;fs; ahUf;Fk; nkw;go jlj;jpy; vt;tpj ghj;jpaKk; ,y;iy/"

29. A reading of the said description of the property will show how absurd and how motivated the objection raised by the revision petitioners is? The first petitioner in the revision petition, namely Govindasamy, is also an attestor of the sale deed dated 11.09.1975, under which his wife Pushpavalli purchased the said property and the description of the property contained therein recites the existence of the east-west and north-south passages as access to the suit property and that the right to common use of the passage also formed part of the subject matter of the sale. In the suit sale agreement also Govindasamy was an attestor. The very same recitals are found in the suit sale agreement. As such, it is obvious that, having failed in their attempt to contest the case filed by the decree holder for the relief of specific performance, they had chosen to contend that the property that was the subject matter of sale agreement, did not have any access from the street and that the decree holder agreed to purchase the same knowing fully well that the said property was land locked and did not have any access from the street.

30. As pointed out supra, the sale deed under which Pushpavalli purchased the suit property in 1975 and also in the suit agreement for sale, the east-west common passage in between the suit property, a vacant site and the property of Govindasamy and the north-south common passage with a width of 6 feet connecting the said east-west common passage with the east-west street have been mentioned as common space for the use of the owner of the vacant site on the rear portion viz., the suit property and the owner of the front portion viz., the property of Govindasamy. The very same recital is found in the decree and also the sale deed executed by the Executing Court. Still the first petitioner in the revision, who is none other than the husband of the second petitioner in the revision/Pushpavalli, has chosen to put up an obstacle on the north-south portion of the common passage totally blocking the access to the rear portion, which is the subject matter of the suit.

31. It is also pertinent to note that the first petitioner in the revision, viz. Govindasamy was very much aware of the said position, as he was an attestor of not only the sale deed under which the property was purchased by his wife Pushpavalli, but also an attestor of the suit sale agreement. Even if it is assumed for argument sake without admitting that the suit property lying on the rear side of the building of Govindasamy does not have any access, even then, since admittedly there was unison of title at some point of time regarding both the portions and Govindasamy himself purchased the front portion from the very same person who was the vendor of Pushpavalli, owner of the rear portion shall be entitled to an access by easement of necessity. It is also pertinent to note that Govindasamy, the first petitioner in the revision has not chosen to produce the sale deed under which he purchased the front portion abutting the street. Had he produced the said document, whether the common passage now claimed to be part of the subject matter of the present suit, was shown in his sale deed as common passage or as part of his separate property, would have come to light. For the reasons best known to him, he has chosen to refrain from producing the said sale deed or a certified copy of the same. Not even the sanctioned plan for the building was produced by him to show that there was no common passage on the west of his property, providing an access to the rear portion viz., the suit property. After having failed in his attempt to resist the suit filed against his wife and after his wife Pushpavalli suffered a decree for specific performance, which was also executed by the execution of a sale deed long back in 2002 itself, when possession is sought to be taken in accordance with the sale deed obtained from the Court, the first petitioner in the revision Govindasamy seems to have acted in collusion with his wife Pushpavalli by providing the obstruction so as to drive the respondent/decree holder out of frustration without enjoying the fruits of the decree and thereby to compel him either to give up the property or to part with the property for a meagre amount that may be offered by him.

32. Besides resisting the application filed by the decree holder for removal of the obstruction, the revision petitioners had chosen to take steps, which can be viewed even as an abuse of process of Court and challenging the authority of the Court itself. The autocratic stand taken by the revision petitioners is highly deprecated. After making Pushpavalli to file an application to condone the delay of more than 4137 days in filing the application under Order IX, Rule 13 C.P.C., further attempt to protract the case was made by making her to file an application to amend the affidavit filed in the said application, proposing amendments in extenso running to five full pages. Similarly, in the execution application filed by the decree holder for removal of obstruction, the revision petitioners have chosen to file an application in C.F.R.No.19436 of 2012 for appointment of an Advocate-Commissioner to note down the physical features of the property to take photograph of the shed put up obstructing the common passage and also for fixing the age of the said building with the help of an engineer. All these steps were aimed at simply prolonging the case and preventing the decree holder from enjoying the fruits of the decree, so as to drive him from the litigation out of frustration.

33. The learned Judge of the Executing Court, after considering the said steps taken by the revision petitioners, came to a correct conclusion that the application in C.F.R.No.19436 of 2012 was nothing but an abuse of process of Court and hence deserved rejection. The order passed in the said unnumbered application cannot be successfully assailed. Consequent to the orders passed in C.F.R.N.19436 of 2012, the learned Judge of the Executing Court took up the application for removal of obstruction viz., E.A.No.314 of 2011 in E.P.No.89 of 2009 and passed suitable orders directing removal of the obstruction and also delivery of vacant possession of the suit property in accordance with the decree, which was partly executed by the execution of the sale deed. The said order also cannot be assailed either as defective or infirm. As against the said order directing removal of obstruction and also the order passed in the Execution Petition directing delivery of possession, no civil revision petition has been filed. The same itself will show the intention of the revision petitioners to keep their options open to protract the case still further. The ultimate result of the analysis made by this Court is that there can be least justification for the acts on the part of the revision petitioners aimed at protracting the case.

34. When this Court wanted to know whether the revision petitioners were prepared to remove the obstruction themselves so as to avoid any damage to the neighbouring building belonging to the first petitioner in the revision, it was sought to be argued that the same was a pucca building built as a single unit and the demolition of the portion lying on the alleged common passage was not possible, as it would cause damage to the main building of the first revision petitioner/obstructor. When such an attempt was made, it was suitably countered by the learned counsel for the respondent/decree holder by producing a photograph of the building, which shows that a separate structure was erected with brick walls and tin sheet roof obstructing the common passage and that the said structure does not have any connection with the main building of the first revision petitioner. The removal of the said structure will in no way cause damage to the building of the first revision petitioner.

35. For all the reasons stated above, this Court comes to the conclusion that C.R.P.(NPD) No.3842 of 2012 also deserves to be dismissed. In view of the fact that husband and wife joined together and filed frivolous applications, the same is viewed as an example of abuse of process of Court. This court is of the considered view that the petitioners in the revision petition should be taxed with compensatory cost and this court fixes Rs.10,000/- to be such cost.

In the result, all the three Civil Revision Petitions are dismissed and the revision petitioners are directed to pay a sum of Rs.10,000/- as cost to the respondent herein. Consequently, the connected miscellaneous petitions are closed.

17.02.2014 Index :Yes Internet: yes asr/-

To The I Additional Subordinate Judge, Coimbatore The II Additional Subordinate Judge, Coimbatore P.R.SHIVAKUMAR,J.

Asr/-

C.R.P.(NPD)Nos.3842 of 2012, 2480 of 2013 and 4258 of 2013 and M.P.Nos.1 of 2012 & 1 of 2013 Dated : 17-02-2014