Madras High Court
Rajamani Gurukkal ... Revision vs Mrs. Rama on 6 February, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 6.2.2012
Coram:
The Honourable Mr. Justice R.S.RAMANATHAN
C.R.P.(NPD) No.1230 of 2011
and
M.P.No.1 of 2011
Rajamani Gurukkal ... Revision Petitioner/
Judgement Debtor
..vs..
1. Mrs. Rama
2. T. V. V. P. P. Thirumaligai Sishyall
Trust represented by its
Managing Trustee, R.Venkatesh,
37, Pinjala Subramaniam Street,
T.Nagar, Chennai-17.
... Respondents/
Decree holders
Civil Revision Petition filed under Section 115 of Civil Procedure Code to set aside the order in E.P.No. 65 of 2010 in O.S.No.192 of 1998 on the file of District Munsif, Sirkali, dated 14.3.2011 and allow the C.R.P.
For Petitioner ... Mr. A.Thyagarajan
For Respondents ... Mr.T.R.Rajaraman
O R D E R
The Judgement Debtor in O.S.No.192 of 1998 on the file of the District Munsif Court, Sirkali, is the revision petitioner.
2. O.S.No.192 of 1998 was filed by the respondents herein and the 2nd respondent being a Trust was represented by the Managing Trustee Mr. P.Rajagopalan. The suit was for recovery of arrears of rent and damages and for use and occupation and for other reliefs. The suit was decreed and confirmed in the first and second appeal. Thereafter, the respondents/ decree holders filed Execution Petition in E.P.No.65 of 2010 to execute the decree passed in O.S.No.192 of 1998 and in that Execution Petition the Trust was represented by the Trustee R.Venkatesh as per the resolution dated 5.7.2007 and that Execution Petition was allowed as prayed for. Against the same, this revision is filed by the revision petitioner.
3. Mr.A. Thiyagarajan, the learned counsel for the revision petitioner submitted that the Exectuion Petition No.65 of 2010 filed by the Decree holders ought to have been rejected by the executing Court as proper persons have not filed the application for execution and the 2nd respondent herein who was the 2nd respondent in the Execution Petition was originally represented by one P.Rajagopalan during the trial and without filing any application to replace him the Trust was represented by one R.Venkatesh and therefore the respondents herein are not proper parties to file the Execution Petition and therefore the Court below ought to have rejected the Execution Petition as it is against the provisions of Order 21 Rules 11 and 16 of C.P.C., In support of his contention he also relied upon the following Judgements reported in AIR 1993 Karnataka 321 (Smt. Kariyamma and others Vs. The Assistant Commissioner and Land Acquisition Officer), AIR 1983 Jammu and Kashmir, 67 ( Ghulam Nabi she Vs. Gaffer Wagey), AIR 2003 Karnataka, 142 (Sangappa Mallappa Kuri Vs. Special Land Acquisition Officer, Bagalkot), AIR 1994 Supreme Court, 1286 ( Smt. Jiwani Vs. Rajmata Basantika Devi and others), AIR 1986 Calcutta 118 (Baisnab Das Sen Vs. Bholanath Sen and another) and AIR 1984 Patna, 227 (Rai Mathura Prasad Vs. Special Officer, Bihar Hindu Religious Trust Board and others). He further contended that there is variance in the description of property and as per the decree passed in O.S.No.192 of 1998 the suit property is bounded on the North by Punja Lands of Murugesa Mudaliar, South of Street, West of Narayanan's house and East of P.B.K.Rengarajan's property and as per the Schedule to the Execution Petition in E.P.No.65 of 2010 the property is bounded on the North by Punja Lands of Murugesa Mudaliar, South by Street, West by Narayanan's house and East by P.B.K.Rengarajan's property and the Southern, Western and Eastern boundaries are different from that of the plaint schedule as per the Decree passed in O.S.No.192 of 1998 and therefore the Execution Petition ought to have been rejected as the property sought to be delivered is different from the property described in the plaint.
4. Mr.T.R.Rajaraman, the learned counsel for the respondents submitted that there is no variance in the description of property and as per the Decree passed in O.S.No.192 of 1998 the schedule of property was given in E.P.No.65 of 2010 and also produced the certified copy of the Decree in O.S.No.192 of 1998 in support of his contention. He further submitted that even assuming that there is some variance in the boundaries the property is not a vacant site and the property is a building having Door Number and there is no dispute regarding the Door Number 4/22 and Survey Number 142/10 and therefore having regard to the nature of the property namely the house with a specific Door Number, it cannot be contended that there is a difference in the property described in the Decree and the property sought to be executed in the Execution Petition. He further submitted that O.S.No.192 of 1998 was taken up to this Court and the Decree passed in O.S.No.192 of 1998 was confirmed by this Court in the Second Appeal and the records in the Second Appeal in S.A.No.51 of 2003 may be called for to verify the description of property in O.S.No.192 of 1998.
5. Mr.A.Thiyagarajan, the learned revision petitioner further submitted that against the Judgement and Decree in S.A.No.501 of 2003 the revision petitioner has filed S.L.P. before the Hon'ble Supreme Court and the same is pending in the Hon'ble Supreme Court in S.L.P.(Civil)No.2186 of 2011 and therefore till the disposal of S.L.P. the execution ordered by the Court below has to be stayed and in the event of S.L.P. being allowed by the Hon'ble Supreme Court, the revision petitioner is entitled to get back his property.
6. Mr.T.R.Rajaraman, the learned counsel for the respondents submitted that no stay has been granted by the Hon'ble Supreme Court in S.L.P. (Civil)No.2186 of 2011 and according to his information the revision petitioner was directed to produce the certified copy of the Decree in S.A.No.501 of 2003 and they have not produced the same and therefore the matter was not listed before the Hon'ble Supreme Court. He further submitted that in the event of any favourable order being passed in the S.L.P. in favour of the revision petitioner, the Decree holders will redeliver the property.
7. Heard both sides.
8. To appreciate the contention of the learned counsel for the revision petitioner that the Execution Petition was not properly filed by the proper person and it is against the provisions of Order 21 Rules 11 and 16 of C.P.C., we will have to see the provision of that rules. As per Order 21 Rule 11 (2) of C.P.C., every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. According to me, it is not necessary that the Execution Petition must be signed and verified by the petitioner and it is sufficient if the same is signed by some other person who proved to the satisfaction of the Court about the acquaintence of the facts of the case and such person is also entitled to sign and verify the Execution Petition. In this case, admittedly the plaintiffs in O.S.No.192 of 1998 are one Rama and T.V.V.P.P. Thirumaligai Sishyal Trust represented by its Managing Trustee P.Rajagopalan. Therefore, the parties to the suit are Mrs. Rama and the Trust and the Trust was represented by the Managing Truestee one Rajagopalan at the time of filing of the suit and at the time of filing of the Execution Petition the Trust was represented by the Managing Trustee R.Venkatesh by virtue of the special resolution passed by the Trustee. Therefore, according to me, there is no change in the name of the plaintiffs and the 1st plaintiff remains the same and the 2nd plaintiff was represented by one Managing Trustee during the trial and was represented by another Managing Trustee at the time of Execution Petition. Therefore, when there is no change in the name of the parties the provision of Order 21 Rule 11(2) of C.P.C., has not been contravened by filing the Execution Petition by the plaintiffs and there is no violation of Order 21 Rule 11 (2) of C.P.C., Similarly, Order 21 Rule 16 of C.P.C., will come into operation when the interest of any Decree holder in the decree is transferred by assignment in writing or by operation of law in favour of another person and when the transferee wants to file execution he has to seek the leave of the Court and notice of such application shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objection to its execution. In this case, there is no question of transfer of decree either by assignment or by operation of law and as stated supra the Decree holder remains the same namely the Trust and the person who represented the Trust has changed by virtue of the resolution. Therefore, there is no need to get permission of the Court for filing the Execution Petition on behalf of the Trust by the successor in interest.
9. In the Judgement reported in AIR 1983 Jammu and Kashmir, 67 ( Ghulam Nabi she Vs. Gaffer Wagey), it has been laid down that the Execution Petition can be moved either by Decree holder or his recognised agent acting on his behalf after satisfying the Court that he was acquainted with the facts of the case. The decision reported in AIR 1984 Patna, 227 (Rai Mathura Prasad Vs. Special Officer, Bihar Hindu Religious Trust Board and others) will not apply to the facts of the case and in that case the suit was filed by the Trustees and during execution of the decree the Special Officer, Trust Board applied for adding himself as a party and that application was allowed and thereafter he was permitted to file the Execution Petition representing the Trust and that was upheld. In that Judgement it has not been laid down that any successor Turstee cannot institute the Execution Petition without obtaining the leave of the Court. In the Judgement reported in AIR 1993 Karnataka 321 (Smt. Kariyamma and others Vs. The Assistant Commissioner and Land Acquisition Officer) and the Judgement reported in AIR 2003 Karnataka, 142 (Sangappa Mallappa Kuri Vs. Special Land Acquisition Officer, Bagalkot), it was held that the Legal Representative of the deceased Decree holder cannot file Execution Petition without obtaining Succession Certificate and therefore those cases will not apply to the facts of the case.
10. Therefore, the contention of the learned counsel for the revision petitioner that the Execution Petition filed by the 2nd respondent represented by different person is not maintainable cannot be sustained and according to me, there is no change in the names of the parties and the successor in interest in representing the Trust can file the Execution Petition and there is no need for him to apply for permission. Even other wise, it is only a procedural irregularity and that will not go into the route of the Execution Petition as the Trust remains to be the one of the Decree holders.
11. The second contention raised by the learned counsel for the revision petitioner also cannot be sustained. It is seen from the typed set of papers filed in S.A.No.501 of 2003 that in O.S.No.192 of 1998 the suit property was described as bounded on the North by Punja Lands of Murugesa Mudaliar, South by Street, West by Narayanan's house and East by P.B.K.Rengarajan's property as described in the Execution Petition. The Door Number is also 4/22 and Survey Number is 142/10. Though in the certified copy produced by the learned counsel for the revision petitioner the boundary recitals are different, the learned counsel for the respondents also produced the certified copy of the Decree passed in O.S.No.192 of 1998 and the description of property found therein corresponds with the description given in the plaint in O.S.No.192 of 1998 and the description given in the Execution Petition No.65 of 2010. Therefore, having regard to the boundary recitals given in the plaint in O.S.No.192 of 1998 and the boundary recitals in the Decree produced by the learned counsel for the respondents, in my opinion, the boundary recitals mentioned in the decree produced by the learned counsel for the revision petitioner is only erroneous and the boundary recitals are mistakenly given in the certified copy of the decree filed by the learned counsel for the revision petitioner.
further considering the fact that the Door Number and Survey Number are identical in all the Decrees produced by both parties, in my opinion, there is no need to doubt the boundaries given in the Execution Petition. Therefore, in the Execution Petition the correct description of property was given and that was taken into consideration by the Court below in ordering the delivery.
12. In the Judgement reported in AIR 1991 Bombay 341 (Jaikisandas Balchand Pamnaiii and another Vs. Municipal Corporation of Greater Bombay and others), there was material misdescription in the sale proclamation regarding the extent of boundary and in the Judgement reported in AIR 1986 Calcutta 118 (Baisnab Das Sen Vs. Bholanath Sen and another), the Execution Petition was filed by the third party who was not the Decree holder. Therefore, it was held that the Execution Petition filed by such person is not maintainable. But in this case, there is no misdescription of property given in the Execution Petition and it corresponds with the description of property given in the plaint in O.S.No.192 of 1998. Further, prior to the filing of the suit in O.S.No.192 of 1998 by the Decree holders, the revision petitioner filed O.S.No.70 of 1997 for specific performance and in that suit also the same description as given in the Execution Petition was given and in the sale deed executed by the 1st plaintiff in favour of the 2nd plaintiff on 15.5.1998 which was marked as Ex.A1 in O.S.No.192 of 1998 the same description as given in the Execution Petition was given. Therefore, there is no iota of doubt regarding the description of property as given in the plaint and as given in the Execution Petition and therefore there is no question of misdescription of property and the Court below has rightly allowed the Execution Petition. Hence, I do not find any merit in the contention raised by the learned counsel for the revision petitioner and the revision is dismissed.
13. Though the matter is pending before the Hon'ble Supreme Court, no stay has been ordered by the Hon'ble Supreme Court, and hence there is no impediment for the Decree holders to execute the Decree and that was also considered by the Court below and ordered delivery. In the event of any order being passed by the Hon'ble Supreme Court in favour of the revision petitioner, it is open to the revision petitioner to apply for restitution and the same can be considered by the Court below on merits. The respondents can execute the Decree fifteen days after the receipt of the copy of this order.
With the above direction, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
6.2.2012 Index: Yes/No. Internet: Yes/No. kr.
Note to Office:
Issue order copy on 10.2.2012.
R.S.RAMANATHAN,J.
kr.C.R.P.(NPD).No.1230 of 2011
and M.P.No.1 of 2011 6.2.2012