Madras High Court
Chairmandurai (Died) vs /27 on 7 September, 2016
C.R.P.(MD).No.1194 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 11.06.2024
DELIVERED ON: 23.09.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(MD).No.1194 of 2004
1.Chairmandurai (died)
2.Sittambalam
3.C.Kandhimathi
4.T.C.Selvakumaran
5.M.Chithra
6.S.Senthamil Selvi
7.C.Thirumurugan
8.C.Venkatesh Babu
9.M.Jayanthimala
10.C.Dharmaraj ...Petitioners
Vs
1/27
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1194 of 2004
1.S.M.Syed Fathimal
2.Alimal
3.Kathija Beevi
4.Pathumuthammal
5.Peer Mohamed
6.Abubucker
7.Farida Beevi
8.Ahamed Meera Ammal
9.Salhudeen
10.Asan Meeran Sahib
11.Noorjahan
12.Chithi Rasmilk
13.Sagarban Beevi
14. Minor Abdul Razack
15. Minor Fathima
16.Meera Beevi
17.Mohamed Ismail Sahib (died)
18.Abdul Kader
19.Seyed Abdulla (died)
2/27
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1194 of 2004
20.Yusuf
21.Sulthan Mohideen (died)
22.Khaja Mohideen
23.Isvath Begum
24.Barakkath Begum
25.Subhaidha Begum
26.Jessia Begum
27.Ameena Beevi
28.Ayisha Beevi
29.Jaleel
30.Mohammed Ismail
31.Minor Sherajun Meera
32.Rahmath Beevi
33.Shakila
34.Jilani
35.Ajima
36.Mohideen Bismi
37. Mariam Beema
3/27
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1194 of 2004
38.Bhadusha
(Petitioners 3 to 10 brought on record as legal heirs of the deceased 1 st
petitioner vide order dated 07.09.2016)
(Respondents 14 & 15 minors are represented through their mother
first respondent namely S.M.Syed Fathimal)
(Respondent No.3 is declared as major and discharged from the
guardianship of her mother as 16th respondent vide Court order dated
31.01.2020)
(Respondent No.16 is recorded as legal heirs of the deceased R17 vide
Court order dated 24.03.2017)
(Respondents 23 to 31 are brought on record as legal heirs of the
deceased R17 vide Court order dated 02.07.2019)
(Respondents 32 to 34 are brought on record as legal heirs of the
deceased 19th respondent vide Court order dated 20.07.2023)
( Respondents 35 to 38 are brought on record as legal heirs of the
deceased 21st respondent vide Court order dated 20.07.2023)
PRAYER: The Civil Revision Petition has been filed under Section 115 of
Code of Civil Procedure to set aside the fair and decreetal order dated
05.12.2003 passed in E.A.No.32 of 1992 in O.S.No.8 of 1968 on the file
of the Principal Subordinate Judge, Tirunelveli.
For Petitioner : Mr.Ramakrishnan Viraraghavan
Barrister and Senior Counsel
For Mr.M.P.Senthil
4/27
https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.1194 of 2004
For Respondents : Mr.M.Ajmalkhan
Senior Counsel for R16, 18, 23 to 31
: No appearance for R1, R7, R8, R10, 12,
R20, R32 to R38
: Dismissed– R2 to R6, R9, R11, R13 & R22
ORDER
The instant writ petition has been filed by the petitioners in E.A.No. 32 of 1992 in O.S.No.8 of 1968 on the file of the Principal Subordinate Court, Tirunelveli challenging the dismissal application filed under Section 47 read with Section 151 of C.P.C.
(A). The undisputed facts are as follows:
2.The suit schedule properties are the absolute properties of one Thangapal Nadar. He had executed a mortgage by conditional sale in favour of one Mymoon Ammal on 27.06.1961 for a period of two years.
Since the amount was not paid, she had filed O.S.No.8 of 1968 seeking to declare that the sale in favour of the plaintiff has become absolute and for a direction to the defendants to pay the cost of the suit. The said suit was filed on 06.01.1968.
3.After entering into a mortgage by conditional sale with Mymoon 5/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 Ammal, the original owner, namely Thangapal Nadar had created a simple mortgage on 21.01.1963 in favour of one A.K.Ahamed Mohaideen and S.M.Mohammed Mohideen. They filed O.S.No.40 of 1967 for recovery of money. A preliminary decree came to be passed, followed by a final decree on 08.01.1968. E.P.No.3 of 1969 was filed and one of the mortgagees namely S.M.M.Mohaideen had purchased the property in Court auction sale on 28.03.1969. The sale was confirmed on 07.06.1969.
4.Based upon the confirmation of sale in his favour in O.S.No. 40 of 1967, the said S.M.M.Mohaideen, got impleaded himself in O.S.No. 8 of 1968 on 31.07.1969. Later, a compromise was entered into between the plaintiff and the said S.M.M.Mohaideen on 28.08.1969 and a preliminary decree came to be passed on 30.08.1969. In I.A. No. 1445 of 1970, a final decree came to be passed on 06.02.1978.
5.The original owner of the property namely Thangapal Nadar had filed O.S.No. 71 of 1969 challenging the Court auction sale dated 28.03.1969 made in O.S.No.40 of 1967. The said suit was dismissed on 25.03.1971 and the first appeal preferred by the plaintiff in A.S.No. 193 of 1971 was dismissed on 20.12.1972. The plaintiff Thangapal Nadar had filed S.A.No. 809 of 1973 and the same was allowed on 05.03.1976 setting 6/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 aside the Court auction sale dated 28.03.1969 in O.S.No. 40 of 1967 as null and void. Challenging the judgement in S.A.No. 809 of 1973, the defendant in O.S.No. 71 of 1969 had approached the Hon'ble Supreme Court in C.A.No. 1023 of 1976. Though initially interim order was granted, the same was vacated on 16.01.1991 and the appeal was dismissed as abated on 16.01.1991. Therefore, the order of the High Court in S.A.No.809 of 1973 setting aside the Court auction sale in favour of S.M.M.Mohaideen dated 28.03.1969 in O.S.No.40 of 1967 has attained finality.
6.In O.S.No. 8 of 1968 (the suit from which the present revision petition has arisen), I.A.Nos. 200 and 204 of 1984 were filed by the legal heirs of the Thangapal Nadar to set aside the ex-parte final decree in passed in I.A.No. 1445 of 1977. I.A.Nos.200 and 204 of 1984 were allowed by the Trial Court and ex-parte final decree was set aside. Challenging the same, the decree holder Mymoon Ammal had filed C.R.P.No.2968 of 1990 and 535 of 1991 before this Court and both the revision petitions were allowed on 21.05.1991 restoring the final decree dated 06.02.1978. The present revision petitioners had challenged the order in C.R.P.Nos. 2968 of 1990 and 535 of 1991 in S.L.P. (Civil)Nos. 7/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 14233-14234 of 1991 before the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to dismiss the Special Leave Applications on 05.08.1996. Therefore, the final decree in favour Mymoon Ammal had attained finality.
7.The revision petitioners herein who are the legal heirs of the original owner namely Thangapal Nadar had filed E.A.No.32 of 1992 under Section 47 of C.P.C, contending that the decree passed in O.S.No. 8 of 1968 is not executable. They contended that the final decree is based upon the compromise entered into between the original plaintiff namely Mymoon Ammal and S.M.M.Mohaideen. When the sale in favour of S.M.M.Mohaideen in O.S.No. 40 of 1967 has held to be void by the Hon'ble Supreme Court, any compromise entered into by the plaintiff in favour of said S.M.M.Mohaideen is illegal. The preliminary decree dated 30.08.1969 is based upon an illegal compromise and therefore, the final decree has also become in-executable. This application was resisted by Mymoon Ammal on the ground that final decree has already been upheld by the High Court in C.R.P.Nos. 2968 of 1990 & 535 of 1991 which was also confirmed by the Hon'ble Supreme Court and therefore, the legality of the final decree cannot be re-adjudicated by the legal heirs of the original 8/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 mortgagor namely Thangapal Nadar.
8.The Executing Court after considering the submissions on either side proceeded to dismiss the said application under Section 47 of C.P.C. Challenging the same, the present revision petition has been filed by the legal heirs of the original owner namely Thangapal Nadar.
(B)Contentions of the learned Senior Counsel appearing for the revisions petitioners are as follows:
9.S.M.M.Mohaideen who is one of the plaintiffs in O.S.No.40 of 1967 has got himself impleaded as third defendant in O.S.No.8 of 1968 only on the ground that he is the successful Court auction purchaser in O.S.No.40 of 1967. The said Court auction sale has been held to be null and void in O.S.No.71 of 1969 and the same has been confirmed by the Hon'ble Supreme Court also. In such circumstances, the Court auction purchaser in O.S.No.40 of 1967 cannot have entered into a compromise with the plaintiff in O.S.No.8 of 1968. Only based upon the said illegal compromise, a preliminary decree was passed on 30.08.1969 followed by a final decree on 06.02.1978. Since the preliminary decree and the final decree are based upon an illegal compromise, the final decree in O.S.No.8 of 1968 is not executable.
9/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004
10.The learned Senior Counsel had further contended that even though the execution has not been initiated in O.S.No.8 of 1968 based upon the final decree dated 06.02.1978, the present application in E.A.No. 32 of 1992 is maintainable under Section 47 of C.P.C. The learned Senior Counsel had relied upon a judgment of the Hon'ble Supreme Court reported in (1967) 1 SCR 147 ( M.P.Shreevastava Vs. Mrs.Veena) and judgment of the Delhi High Court reported in 1986 SCC Online Delhi 196 ( Shri Narain Kumar & Shri Wazir Singh Vs. Shri H.C.Mehta ) in support of his contention.
11.The learned Senior Counsel had further contended that the Execution Court has power to declare a decree incapable of execution because of certain events subsequent to the decree. According to him, a final decree in O.S.No.8 of 1968 is dated 06.02.1978. The said decree is based upon a compromise entered into between the plaintiff and the third defendant namely S.M.M.Mohaideen. The Court auction sale in favour of S.M.M.Mohaideen in O.S.No.40 of 1967 has been declared to be null and void in another suit in O.S.No.71 of 1969. Therefore, in view of the subsequent events, the Execution Court should have allowed 10/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 E.A.No.32 of 1992. He relied upon a decision of this Court reported in 2011 (4) CTC 118 ( S.Gunasekaran and others Vs. The Government of Tamil Nadu and others) in support of his contention.
12.The learned Senior Counsel had further contended that the cause of action for filing an application under Section 47 of C.P.C. has arisen only on the date on which the Hon'ble Supreme Court dismissed the Civil Appeal arising out of O.S.No.71 of 1969 on 16.01.1991. Therefore, the present application having been filed in the year 1992 is well within the period of limitation. The learned Senior Counsel had further contended that the said S.M.M.Mohaideen has got impleaded himself in O.S.No.8 of 1968 only in the capacity of Court auction purchaser in O.S.No.40 of 1967. He entered into a compromise in O.S.No.8 of 1968 also in the same capacity. Therefore, the findings of the Executing Court that S.M.M.Mohaideen was impleaded in his capacity as a second mortgagee is not factually correct.
13.The learned Senior Counsel had further contended that the mortgagor namely Thangapal Nadar had lost his title in the Court auction sale in O.S.No.40 of 1967 to S.M.M.Mohaideen. Later when the said Court auction sale was held to be void in O.S.No.71 of 1969, the petitioner 11/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 is always entitled to restitution of his rights. Even though E.A.No.32 of 1992 was filed under Section 47 of C.P.C, the power of restitution is not confined to Section 144 of C.P.C. The learned Senior Counsel had relied upon in a decision of the Hon'ble Supreme Court reported in 2022 SCC Online SC 372 ( Mekha Ram and others Vs. State of Rajasthan and others) to impress upon the Court that the Court has got inherent powers to order restitution.
14.The Hon'ble Supreme Court by dismissing the Civil Appeal No. 1023 of 1976, has laid down the law that the Court auction sale in favour of S.M.M.Mohaideen in O.S.No.40 of 1967 is illegal, null and void. Therefore, the Supreme Court order must be given full legal recognization and the said order cannot be ignored in view of Article 141 and 142 of Constitution of India.
15.The learned Senior Counsel had further contended that when the trial Court considered I.A.Nos.200 and 204 of 1984, the order of the Hon'ble Supreme Court dated 16.01.1991 was not available and therefore, they were not able to press into service the Judgment of the Hon'ble Supreme Court at the relevant point of time. He had further pointed out that the High Court while disposing of CRP.Nos.2968 of 1990 and 535 of 12/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 1991 has referred to the Special Leave Petition and therefore, it cannot be contended that by dismissal of SLP.(C).Nos.14233-14234 of 1991, the final decree in O.S.No. 8 of 1968 has attained finality and therefore, any argument challenging the validity of the final decree would be hit by res judicata. He further pointed out that when the pendency of SLP before the Hon'ble Supreme Court arising out of O.S.No.71 of 1969 was taken cognizance, the judgement delivered by the Hon'ble Supreme Court in C.A.No.1023 of 1976 on 07.09.1976 has also to be taken into account.
16.The learned Senior Counsel had further contended that the legality or otherwise of the compromise in O.S.No.8 of 1968 was not under challenge in CRP.No.2968 of 1990. What was under dispute was whether the final decree dated 06.02.1978 was exparte in character or it was passed after hearing both the parties.
17.The learned Senior Counsel had further contended that the issue of constructive res judicata will also not apply to the facts of the present case, in view of the fact that the order of the Hon'ble Supreme Court dated 07.09.1976 in C.A.No.1023 of 1976 was not available when I.A.Nos. 200 and 204 of 1984 were disposed of. Therefore, the petitioner never had a chance to raise the said issue at the relevant point of time. He had further 13/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 contended that there is no conflict between the order of the Supreme Court dated 16.01.1991 in C.A.No.1023 and the order of the Supreme Court dated 05.08.1996 in SLP.(C)Noa.14233-14234 of 1991. According to him, both the orders run on separate lines and there is no conflict or intersection between either of them. He relied upon a decision of the Hon'ble Supreme Court reported in (2010) 10 SCC 141 (Alka Gupta Vs. Narender Kumar Gupta) in support of his contention.
18.The learned Senior Counsel had further contended that the present revision petition was dismissed as against the respondents 2 to 6, 9, 11, 13 and 22 for default for not taking steps to implead the legal heirs of the deceased respondents. However, that will not result in abatement of the revision petition, in view of the fact that these respondents were already been set exparte. The learned Senior Counsel had relied upon a judgment of the Hon'ble Supreme Court reported in (2013) 14 SCC 722 (Mata Prasad Mathur Vs. Juana Prasad Mathur) in support of his contention. He had further contended that the estate of Mymoon Ammal is represented by other legal heirs. In such an event, it cannot be contended that the entire revision petition got abated.
19.The learned Senior Counsel had further contended that the 14/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 Executing Court has not properly appreciated the contention raised in E.A.No.32 of 1992 and has dismissed the application simply based upon the fact that all the issues have already been decided in CRP.No.2968 of 1990 and 535 of 1991. When the said finding is factually incorrect, the revision petition may be allowed and it may be declared that the final decree in O.S.No.8 of 1968 is not enforceable.
(C) Contentions of the learned Senior Counsel appearing for the respondents are as follows:
20.S.M.M.Mohaideen was impleaded as third defendant in O.S.No.8 of 1968 only in his capacity as a second mortgagee and even assuming that the Court auction sale in his favour is not valid, his array as third defendant in the suit cannot be held to be illegal. The learned Senior Counsel had further stated that the compromise entered into between Mymoon Ammal and S.M.M.Mohaideen is legally valid. The mortgagor having not challenged the preliminary decree, cannot question the final decree on the ground that it is unenforceable. He had further contended that before passing of the preliminary decree and final decree, the ancestor in title of the revision petitioners were heard and since the amount was not deposited pursuant to the preliminary decree, a final decree came to be 15/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 passed. Therefore, at this length of time, the legal heirs of the original mortgagor cannot question the preliminary decree or final decree.
21.The learned senior counsel had further contended that Thangapal Nadar has been declared as an insolvent on 12.04.1967 and therefore, he has lost all his title over the property. In such an event, the legal heirs of the said Thangapal Nadar cannot challenge the decree passed in O.S.No. 8 of 1968 and make a claim over the property. In the final decree proceedings in O.S.No.8 of 1968, ample opportunity was granted to the mortgagor namely Thangapal Nadar and he has not filed the judgement in S.A.No.807 of 1973 and therefore, it cannot be contended now that the final decree is unenforceable. The preliminary decree and the final decree having not been set aside by any Court, the decree holder in the said suit is entitled to execute the same.
22.The learned Senior Counsel had further contended that the present application under Section 47 of C.P.C is clearly barred by limitation, in view of the fact that the cause of action for filing the application arose on 05.03.1976 when S.A.No. 809 of 1973 was allowed. However, the present application having been filed in the year 1992 is clearly barred by limitation. When the revision petitioners had challenged 16/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 the order of this Court in C.R.P.Nos. 2968 of 1990 and 535 of 1991 before the Supreme Court, they have not chosen to rely upon another judgement of the Hon'ble Supreme Court in C.A.No.1023 of 1976 dated 16.01.1991. Therefore, the judgement of the Supreme Court in C.A.No.1023 of 1976 cannot be pressed into service now.
23.The learned Senior Counsel had further contended that the invalidity of the final decree was raised in C.R.P.Nos. 2968 of 1990 and 535 of 1911 and they were rejected by the High Court. The order of the High Court has been confirmed by the Hon'ble Supreme Court. Therefore, the revision petitioners cannot be permitted to raise the same issue again by way of filing separate application under section 47 of C.P.C. The present revision petition has been dismissed with regard to the respondents 2 to 6, 9, 11, 13 and 22 for default. All the respondents in the present revision petition have derived their title only from Mymoon Ammal. The decree cannot be reversed as against some of the respondents alone. He relied upon a judgment of the Hon'ble Supreme Court reported in 2020 (3) CTC 535 ( PR.R.Ramanathan Chettiar (died) and others Vs. Manonmani and others) to contend that when the revision is dismissed on merits as against some of the parties, it cannot be proceeded with as 17/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 against others. The learned Senior Counsel had further contended that the mortgage by conditional sale dated 26.06.1991 in favour of Mymoon Ammal has not yet been redeemed till today. She has become the owner of the property, when the redemption is barred by limitation. So far neither Thangapal Nadar nor his legal heirs have taken any steps to redeem the property from Mymoon Ammal. In such circumstances, the question of considering the validity or otherwise of the final decree in O.S.No.8 of 1968 does not arise.
24.The learned Senior Counsel had further contended that several third parties have acquired rights over the suit schedule property relying upon the Court auction sale and the subsequent final decree. In such circumstances, it would cause hardship to decide the validity of the final decree at this length of time. Hence, he prayed for dismissal of the revision petition.
25.I have considered the submissions made on either side and perused the material records.
(D) Discussion:
26.The original owner namely Thangapal Nadar had first mortgaged his property to Mymoon Ammal by creating a mortgage by conditional sale 18/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 on 27.06.1961 and thereafter, on 21.01.1963, he has created a simple mortgage in favour of A.K.Ahamed Mohaideen and S.M.M.Mohaideen. The puisne mortgagees have filed O.S.No.40 of 1967 for recovery of money. The first mortgagee namely Mymoon Ammal had filed O.S.No.8 of 1968 to declare that the conditional sale has become absolute.
27.When the suit filed by the first mortgagee in O.S.No.8 of 1968 was pending, one of the puisne mortgagee namely S.M.M.Mohaideen had purchased the property in the Court auction sale on 07.06.1969 in O.S.No. 40 of 1967. Based upon his purchase, he got impleaded himself as third defendant in O.S.No.8 of 1968.
28.Thangapal Nadar who was aggrieved over the Court auction sale in favour of S.M.M.Mohaideen had challenged the said sale in an independent suit in O.S.No.71 of 1969. While O.S.No.71 of 1969 was pending, the plaintiff in O.S.No.8 of 1968 and the third defendant ( Court auction purchaser in O.S.No.40 of 1967) entered into a compromise on 28.08.1969 wherein the Court auction purchaser has given up his rights in favour of the plaintiff in O.S.No.8 of 1968. Based upon the said compromise, a preliminary decree was passed on 30.08.1968. In order to record the compromise, the plaintiff had filed I.A.No 663 of 1969 in which 19/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 Thangapal Nadar (Original owner) had raised his objection. Despite his objection, I.A.No 663 of 1969 was allowed on 30.08.1969. The said order has reached finality.
29.Based upon the compromise, a preliminary decree was passed on 30.08.1969 granting one month time to Thangapal Nadar to deposit a sum of Rs. 33,262.75. It is an admitted fact that Thangapal Nadar had neither deposited the said amount within the time nor sought extension of time. In the final decree application, after hearing the said Thangapal Nadar, a final decree came to be passed on 06.02.1978 declaring that Thangapal Nadar is absolutely debarred and foreclosed from exercising all the rights of redemption in the suit schedule property.
30.This final decree was construed to be an ex-parte decree and the legal heirs of Thangapal Nadar have filed I.A.Nos.200 and 204 of 1984 to set aside the final decree. Since the same was allowed, the decree holder filed C.R.P.Nos.2968 of 1990 and 538 of 1991 before the High Court. This Court by an order dated 21.05.1991 in Paragraph nos. 20 and 21 has held as follows:
“21.In the view I have taken above, namely that the order in I.A.No.1445 of 1977 was not an exparte one, but on merits, the 20/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 decisions cited by the learned counsel for the respondents, namely A.I.R1929 Allahabad 279, A.I.R1952 Nagpur 177 and A.I.R.1964 Tripura (supra), will have no application and therefore, it is not necessary to go into those cases in detail.
22.In the result, the order of the Court below in I.A.No.204 of 1984 is set aside and the Civil Revision Petitions are allowed.
However, there will be no order as to costs.”
31.It is clear that when the order of this Court was passed in the revision petition on 21.05.1991, the Hon'ble Supreme Court has already dismissed C.A.No. 1023 of 1976 on 16.01.1991. It could be further seen that the invalidity of the final decree dated 06.02.1978 in O.S.No.8 of 1968 was also raised and the High Court has refused to entertain such a plea.
32.The Hon'ble Supreme Court has dismissed the said S.L.P on 05.08.1996 thereby the order of the High Court refusing to entertain a plea challenging the validity of the final decree dated 06.02.1978 has got confirmed. The Court auction sale in favour of S.M.M.Mohaideen in O.S.No. 40 of 1967 has held to be null and void in O.S.No 71 of 1969 by the Hon'ble Supreme Court. Even if the sale deed in favour of S.M.M.Mohaideen has held to be invalid, his capacity as a puisne mortgagee of Thangapal Nadar is not in dispute. Therefore, impleading 21/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 S.M.M.Mohaideen as third defendant in O.S.No. 8 of 1968 could be justified on the ground that he is a puisne mortgagee of the suit schedule property.
33.A perusal of the preliminary decree in O.S.No. 8 of 1968 further reveals that the official receiver of Tirunelveli was shown as second defendant in the suit. According to the respondents, Thangapal Nadar has been declared as an insolvent on 12.04.1967 and therefore, his property got vested with the official receiver. This fact has not been disputed by the legal heirs of Thangapal Nadar. When the property had already got vested with the official receiver, it is not known under what rights the present proceedings are initiated by the legal heirs of Thangapal Nadar without discharging themselves from the insolvency proceedings.
34.When the validity of the final decree in O.S.No. 8 of 1968 was challenged before the High Court in C.R.P.Nos. 2968 of 1990 and 535 of 1991 and it was rejected, certainly the legal heirs of Thangapal Nadar cannot raise the same issue by filing an independent application in E.A.No 32 of 1992 under Section 47 of C.P.C. The executability of the final decree in O.S.No. 8 of 1968 is challenged primarily on the ground that it is based upon a compromise between Mymoon Ammal and 22/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 S.M.M.Mohaideen, when the title of S.M.M.Mohaideen is held to be invalid, the compromise is also invalid. This Court has already arrived at a finding that even if the Court auction sale in favour of S.M.M.Mohaideen is held to be invalid, he has got every justifiable right as a puisne mortgagee to enter into compromise with the first mortgagee. The order of the Hon'ble Supreme Court in C.A.No 1023 of 1992 which took away the title of S.M.M.Mohaideen will not affect the right of the said S.M.M.Mohaideen to enter into a compromise with the plaintiff in O.S.No. 8 of 1968. Therefore, the said contention is liable to be rejected.
35.For recording the compromise, the plaintiff in O.S. No. 8 of 1968 had filed I.A.No 663 of 1969, in which Thangapal Nadar was also a party and he has raised objection for recording the compromise. However the Court has proceeded to record the compromise by way of an order dated 30.08.1969. Thangapal Nadar has not chosen to challenge the same or the consequential preliminary decree passed on the same date. Without challenging the preliminary decree dated 30.08.1969, the final decree dated 06.02.1978 cannot be challenged, because the validity of the final decree is challenged only on the ground that the compromise is invalid. 23/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004
36. Thangapal Nadar was granted one month time to pay the mortgage money as per preliminary decree dated 30.08.1969 in O.S.No.8 of 1968. It is an admitted fact that the mortgage money was not deposited within the time nor an extension of time was sought for. Therefore, a final decree came to be passed on 06.02.1978. When the mortgagor has not chosen to deposit the mortgage money in time, it is nothing but consequential, a final decree came to be passed debarring the rights of the mortgagor from making any claim over the mortgaged property. When the rights of the mortgagor has been foreclosed, the legal heirs of the mortgagor cannot now file an application under Section 47 of C.P.C to contend that the final decree is not enforceable.
37.Admittedly the mortgage in favour of Mymoon Ammal by Thangapal Nadar is mortgage by conditional sale. The possession was also handed over to Mymoon Ammal pursuant to the said mortgage. The suit was filed only for a declaration that the sale in favour of the plaintiff has become absolute due to non-payment of mortgage money within a period of two years. It is also an admitted fact that so far neither Thangapal Nadar nor his legal heirs have paid the mortgage money, despite an opportunity was granted under the preliminary decree dated 30.08.1969. Therefore, the 24/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 legal heirs of the Thangapal Nadar cannot now contend that the final decree in the suit is not enforceable. In fact, the decree is a declaratory decree and therefore, the question of filing execution proceedings as against the said decree does not arise.
38.As on today, recording of the compromise in I.A.No.663 of 1969 and the preliminary decree dated 30.08.1969 have not been put to challenge. The validity of the final decree, though challenged incidentally in CRP.Nos.2968 of 1990 and 535 of 1991, the same was rejected by the High Court and confirmed by the Hon'ble Supreme Court. In such circumstances, there is no legal impediment whatsoever for the plaintiff or the purchaser from her to enjoy the fruits of the said final decree. Therefore, the application under E.A.No.32 of 1992 is devoid of any merits and the Executing Court has rightly rejected the said application.
39.In view of the above said deliberations, there are no merits in the revision petition and this Civil Revision Petition stands dismissed. No costs.
23.09.2024 Index : Yes/No Internet : Yes/No NCC : Yes/No 25/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 To
1.The Principal Subordinate Judge, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
26/27 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.1194 of 2004 R.VIJAYAKUMAR, J msa Pre-delivery order made in C.R.P.(MD).No.1194 of 2004 23.09.2024 27/27 https://www.mhc.tn.gov.in/judis