Madras High Court
S.Uttamchand vs R.Anjugam on 12 June, 2012
Author: V. Periya Karuppiah
Bench: V. Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.06.2012 CORAM THE HON'BLE MR.JUSTICE V. PERIYA KARUPPIAH, C.R.P.(NPD).Nos.405 and 406 of 2010 S.Uttamchand .. Petitioner in both CRPs ..Vs.. 1. R.Anjugam 2. T.M.Devan .. Respondents in both CRPs Prayer: These Civil Revision Petitions are filed under Section 115 of C.P.C. against the fair and decretal order dated 19.3.2009 passed by the learned District Munsif Ponneri made in E.P.No. 57 of 2008 in E.P.No.25 of 1992 in O.S.No.918 of 1975. For Petitioner : Mr.S.Raghavan For Respondents : No appearance for R1 Mr.T.V.Ramanujam, Senior counsel for Mr.S.Jayaraman for R2 COMMON ORDER
C.R.P.(NPD).No.405 of 2010 : This revision is directed against the fair and decretal order passed by the learned District Munsif, Ponneri, dated 19.3.2009 made in E.A.No.57 of 2008 in e.P.No.25 of 1992 in O.S.No.918 of 1975 in allowing the application.
2. C.R.P.(NPD).No.406 of 2010 : This revision is directed against the fair and decretal order passed by the learned District Munsif, Ponneri, dated 19.3.2009 made in E.P.No.25 of 1992 in O.S.No.918 of 1975 in dismissing the E.P.
3. In both the revision petitions, the petitioner was the petitioner in the execution petition in E.P.No.25 o 1992 in O.S.No.918 of 1975 on the file of the District Munsif, Ponneri. The revision petitioner was the respondent in the application filed in E.A.No.57 of 2008. The respondents in both the revisions were the decree holder and the judgment debtor before the execution Court and the first respondent herein has filed the petition in E.A.No.57 of 2008.
4. The revision petitioner herein has filed an Execution Petition in E.P.No.25 of 1992 in O.S.No.918 of 1975 ranking the respondents herein as respondents in the execution petition and sought for the execution of the decree passed against the second respondent herein to deliver the suit property after removing the superstructures. In the said execution petition, the first respondent was the decree holder who remained absent and was set exparte. In the said execution proceedings, the application under section 47 C.P.C was filed by the second respondent (judgment debtor) for dismissal of the E.P. on the ground of non-maintainability since he is said to have purchased the said property from the decree holder itself on 19.9.1991 and the said claim petition was dismissed by the execution Court, against which civil revision petitions were preferred before this Court in C.R.P.(NPD).Nos.583 and 584 of 1998 and the same were disposed of on 23.4.2007 holding the claim of the judgment debtor as the owner of the property was disallowed and therefore, the Execution application was dismissed and the orders passed by the Execution Court was thus, set aside and the revision was allowed. The said order was further reviewed by this Court and the review application filed by the judgment debtor was also dismissed. The SLP preferred by the judgment debtor before the Honourable Apex Court was also dismissed by confirming the orders passed by this Court in the revision dated 16.7.2007. On the basis of the order passed by this Court, the Execution Court had passed an order of delivery of the property in favour of the revision petitioner after removing the super structures in the suit property by the judgment debtor. However, the original decree holder who remained exparte has filed an application to set aside the exparte order passed against her in the E.P. with an application to stay the proceedings and also the application to dismiss the E.P. which is not sustainable. The execution Court had taken all the three applications filed by the original decree holder and the E.P. filed by the revision petitioner together and had passed an order, allowing the application to dismiss the E.P. in E.A.No.57of 2008 and accordingly, the E.P. was also dismissed. The other two applications to set aside the exparte order and to stay the proceedings were dismissed as infructuous.
5. Aggrieved against the order passed by the Execution Court in E.A.No.57 of 2008 dated 19.3.2009 in allowing the said application to dismiss the E.P. and also against the dismissal of E.P.No.25 of 1992 in O.S.No.918 of 1997, these revisions have been filed by the revision petitioner.
6. Heard, Mr.S.Raghavan, learned counsel appearing for the revision petitioner in both the revisions and T.V.Ramanujam, learned senior counsel appearing for Mr.S.Jayaraman, learned counsel for the respondents in both the revisions.
7. Learned counsel for the revision petitioner would submit in his arguments that the lower Court failed to note that the first respondent cannot maintain E.A.No.57 of 2008 since she had sold the suit property to the 2nd respondent on 19.9.1991 despite she sold the suit property to the petitioner on 22.2.1984 and as such she had no interest in the suit property or in executing the decree in O.S.No.918 of 1975 and the dispute regarding the ownership of the suit property or the executability of the decree in the suit would lie only in between the petitioner and the second respondent and the same has been finally decided in favour of the petitioner in C.R.P.(NPD).Nos. 583 and 584 of 1998 by this Court and the same was confirmed by the Honourable Apex Court. He would further submit in his arguments that the first respondent cannot be permitted to sponsor the lost cause of the second respondent once again in this forum. He would further submit in his arguments that the lower Court had erroneously come to the conclusion that the first respondent can file the applications in E.A.Nos.55 to 57 of 2008 in the jurisdiction under section 47C.P.C. cannot be sustained since the first respondent was not present to claim the relief under Section 47 or Order 21 of C.P.C. He would also submit in his arguments that the lower Court has also committed an error by holding that the sale deed dated 19.9.1991 executed by the first respondent in favour of the second respondent was valid under Section 41 of the Transfer of Property Act and the finding was contrary to the judgment and decree dated 23.4.2007 passed by this court made in C.R.P.Nos. 583 and 584 of 1998 between the same parties holding that the said sale was not bonafide and as such was not valid. He would also submit in his arguments that the lower Court had passed a contradictory order by holding the application in A.No.57 of 2008 has to be allowed by holding that E.P. is not maintainable.
8. He would further submit in his arguments that the matter in dispute between the same parties were already adjudicated finally in C.R.P.Nos. 583 and 584 of 1998 which was also confirmed by the Honourable Apex Court in the S.L.P. CC.Nos 7306 and 7307 of 2007 dated 23.8.2007. He would further submit in his arguments the decisions rendered in those proceedings would form resjudicata under explanation (vii) to Section 11 of C.P.C and therefore, the order passed by the lower Court is contrary to law. He would further submit that the reasons stated in the application filed in E.A.Nos. 55 to 57 of 2008 were not true and the averment that she came to know the execution proceedings only on 6.10.2008 was not substantiated by any documentary evidence and on the other hand, she was served with a notice in E.P. and she was served with the notice in C.R.P.Nos. 583 and 584 of 1998 and the C.M.Ps also both privately and through Court. He would further submit that the first respondent wanted to prolong the proceedings for the benefit of the second respondent in order to squat upon the property which was purchased by the petitioner from the first respondent even on 22.2.1984. He would further submit that the 2nd respondent had no title to purchase from the first respondent since she had already parted with the title by virtue of the sale deed dated 22.2.1984 executed in favour of the petitioner.
9. He would further submit that the reasons given by the lower Court that the dismissal of the impleadment application filed by the petitioner before this Court in S.A.No.901 of 1987 in C.M.P.No.14617 of 1991 and no appeal has been taken against the dismissal order would not help the respondents in any way because the second appeal was dismissed as withdrawn by this Court. By virtue of the dismissal order, the judgment and decree passed by the first appellate Court was confirmed and therefore, the impleadment application was dismissed as infructuous. He would also submit that the order passed by this Court in the impleadment application in S.A.No.901 of 1987 was not an order of merits and by virtue of the confirmation of the decree passed by the trial Court in the first appeal as well as by the dismissal of the second appeal, the ejectment decree in O.S.No.918 of 1975 was confirmed and it was against the second respondent. He would further submit that the petitioner who purchased the said property on 22.2.1984 through the sale deed, which was preceded by a sale agreement would entitle the petitioner to execute the decree passed in favour of the seller or vendor. Such a finding of the lower court was not in consonance with the law and facts.
10. He would also submit in his arguments that the lower Court had erroneously held that the sale deed dated 22.2.1984 was not a valid document even though the first respondent as petitioner in those applications did not prove the allegations of the affidavit even through they have been denied specifically in the counter affidavit. No documentary evidence has also been produced in support of the allegations. However, the lower Court had erroneously allowed the application which is not correct. He would further submit that the sale deed dated 22.2.1984 ought to have been proved to be an invalid document by the first respondent and without any discharge of onus, the lower Court had wrongly come to a conclusion that the sale deed dated 22.2.1984 was an invalid document. He would also submit that the Court below had wrongly decided that the said document was an invalid one, even though the said document was upheld by this Court as well as the Honourable Apex Court in their orders. He would further submit that the first respondent cannot re-agitate the same matter which was finally decided by the Supreme Court and the orders passed by the lower Court is totally unlawful. The dismissal of the first appeal in A.S.No.49 of 1985 had confirmed the judgment and decree passed in O.S.No.918 of 1975 and after the dismissal of the Second appeal in S.A.No.901 of 1987, the said confirmation decree passed by the first appellate Court made the decree of the trial Court, final. When the plaintiff in the said suit was given right, title to the suit property and the same was conveyed through the sale deed on 22.2.1984 during the pendency of the proceedings, it would enure the benefits only in favour of the petitioner and it cannot be snatched away by execution of another sale deed in favour of the second respondent knowing very well that the said property was already conveyed by the first respondent to the petitioner.
11. He would also submit that the lower Court was also not correct to say that the property descriptions were not perfectly in order, however, the boundaries were admittedly correct and the boundaries will prevail over the survey number or extent of the said property. He would also submit that various judgments of the Honourable Apex Court and this Court would go to show that the boundaries will prevail over the survey numbers and the extent of the said property and on that aspect, the decision reached by the lower Court is also not correct. He would also submit that the lower Court had unnecessarily made comment upon the revision petitioner and they are unwarranted. He would also submit that the lower Court did not follow the earlier findings reached by this Court as well as the Honourable Apex Court but had come forward to say about the petitioner as well as the transaction had by him with the first respondent. He would also refer to the findings reached by this Court in C.R.P.Nos. 583 and 584 of 1998 in order to show the decision reached by this Court in between the same parties would bind the first respondent also. He would further submit that when the first respondent has no interest after selling the property to the second respondent (which is not admitted by the petitioner) and the second respondent had also agitated his right before the Execution Court, this Court and the Honourable Apex Court, it is not permissible for the first respondent who had already parted away the property would not have any interest in the execution proceedings. He would cite a judgment of this Court reported in 2005(4) CTC 534 in support of his arguments. He would also submit that the decision reached in the application filed by the second respondent under section 47 CPC is clearly a bar and it cannot be re-agitated through some other person.
12. He would also submit in his arguments that the lower Court ought to have taken the application to set aside the exparte order first and thereafter to consider the application in E.A.No.57 of 2008 to dismiss the E.P. but the lower court took all the applications simultaneously which is not a correct procedure since the first respondent herself was already a party to the proceedings. When the application to set aside the exparte order and the application for stay were dismissed consequently, the application to dismiss E.P. should also be dismissed because, the first respondent being a party to E.P. can participate in the execution proceedings only after setting aside the exparte order. He would also submit in his arguments that the execution Court had already passed an order for delivery of the suit property directing the respondents 1 and 2 to deliver the said property to the petitioner and the said order would still prevail when the application to set aside the exparte order has been dismissed by the lower Court itself. He would also submit that the delivery order passed by the lower Court on 18.8.2008 was not challenged by the respondents 1 and 2 and the application filed by the first respondent in E.A.No.57 of 2008 cannot be entertained without setting aside the earlier orders passed by the lower Court on 18.8.2008. The earlier sale deed dated 22.2.84 was executed by the first respondent in favour of the petitioner and the subsequent sale deed dated 19.9.91 by the same first respondent in favour of the second respondent would not convey any right from the first respondent. He would cite a judgment of this Court reported in AIR 1946 Madras 140 and AIR 1960 Madras 396 in support of his argument. He would also refer to a judgment of the Honourable Apex Court reported in 2009 (6) SCC 160 for the same principle. He would further submit in his argument that the petitioner purchased the property from the first respondent prior to the second respondent and the said sale could be deemed as an assignment of the decree itself and the said purchase would entitle the petitioner to proceed with the execution of the decree.
13. He would also refer to a judgment of the Honourable Apex Court reported in AIR 1955 SC 376 in support of his argument. He would also cite a judgment of the Honourable Apex Court reported in AIR 1958 SC 394 for the same principle and it has also laid down that such buyer would get title subject to the rights and liabilities of its vendor. He would also quote the judgment of the Apex Court reported in AIR 1979 SC 1066 for the same principle. He would further submit in his argument that the decision reached by this Court which was confirmed by the Honourable Apex Court would certainly bar the first respondent from questioning the right before the lower Court. He would also refer to the provisions of Section 11 C.P.C, especially, the Explanation (vii) of the said Section in support of his argument. He would further submit in his argument that the lower Court had deliberately committed an error by allowing the application filed in E.A.No.57 of 2008 to dismiss the execution in E.P.No.25 of 1992 in O.S.No.918 of 1975 which is contrary to the provisions of law as well as the order of this Court. He would further submit that the right accrued after a long fought legal battle was simply ignored by the lower Court without following any provisions of law and therefore, it is liable to be interfered and set aside. He would also cite a judgment of the Honourable Apex Court for the principle that for any such vexatious proceedings, exemplary cost should have been awarded. He would cite a judgment of the Honourable Apex Court reported in 2009 (6) SCC 609 for the said purpose. He would therefore request the Court to set aside the order passed by the lower Court in E.A.No.57 of 2008 and in E.P.No.25 of 1992 in O.S.No.918 of 1975 dated 19.3.2009 and the said orders may be set aside and thus, both the revisions may be allowed.
14. Learned senior counsel Mr.T.V.Ramanujam, appearing for the first respondent would submit in his arguments that the sale executed in favour of the petitioner by the first respondent was preceded by he sale agreement and the same was a conditional agreement and Section 54 of the Transfer of Property Act would not be attracted in respect of the sale in favour of the petitioner. He would also submit that the original sale agreement was not produced and if it is produced it would show that the sale deed should have been executed only after the decree would become final. He would further submit in his argument that the sale deed relied upon by the revision petitioner was not a document assigning the decree and therefore, there would not be any substitution of the decree holder to execute the decree. He would further submit that the original sale deed has not been produced and for that no explanation has been offered for producing the certified copy. He would further submit that the sale of any property would not assail the decree attached thereto. He would also submit that the question would be whether he was a transferee during the pendency of the proceedings and whether the decree to be pursued by the original decree holder or by the transferee in possession, was not answered. He would also submit that the first respondent, by virtue of filing these applications told the court that she didl not execute the sale deed and the transfer in favour of the petitioner was denied. When there is a doubt in the mind of the Court regarding the ownership of the property, how the execution could be proceeded with the said defect. He would also submit that the boundaries described in the property differ and therefore, the delivery of the property may be in respect of some other property.
15. He would further submit in his argument that if really the petitioner was confident about his sale deed dated 22.2.1984 why he should have kept quiet all theses days without impleading himself in the first appeal or in the suit but had opted to implead himself only in the second appeal. He would also submit that since the first repondent sold the property to second respondent on 19.9.1991 the second respondent had withdrawn the appeal as he got the title to the suit property. The lower Court has correctly applied the principles laid down in Section 41 of the Transfer of Property Act and found that the sale deed dated 19.9.91 in favour of the second respondent executed by the first respondent had validly conveyed the title and there is no flaw in the decision reached by the lower Court. He would further submit in his arguments that the property described in the Execution Petition was not the same and the survey number and extent differ and the property described in the C.R.P.Nos.583 and 584 of 1998 in paragraph 28 also differs and therefore, the presence of the decree holder is important to solve these disputes. He would further submit that the first respondent who was the actual decree holder knew about the features of the property and the description would go to show that two different properties are mentioned in the execution petition as well as in the sale deed and therefore, the arguments regarding the boundaries would prevail over the extent will not be applicable to the present case.
16. He would further submit in his arguments, any earlier order or findings obtained by suppressing the facts is a nullity and it would not bind the parties. He would refer to a judgment of Honourable Apex Court reported in 1994 (1) SCC 1 in support of his arguments. He would further submit that the Courts need not be tied by the earlier orders when new facts have been brought before the Court regarding the factual aspect. He would further submit that the properties in dispute are admittedly different and the petitioner would be owner of land in S.No.237/42 and not the suit property. He would further submit that the bailiff went to the place and verified the records and returned the warrant for want of correct description of the property, since the property described in the petition was different one. He would further submit in his argument that the application filed by any person challenging the proprietary or executability of the decree during the pendency of the execution petition, it would squarely fall under section 47 CPC and therefore, the decision reached by the lower Court is quiet correct. He would also submit that when the lower court had factually reached certain decisions it may not be interfered in the revision unless it is perverse and tainted with illegality. He would further submit that the lower Court had come to the conclusion that the properties are different and therefore, it did not violate the previous orders passed by this Court as confirmed by the Supreme Court and therefore, the civil revision petitions may be dismissed.
17. I have given anxious thoughts to the arguments advanced on either side.
18. The admitted facts of the case in between parties would be that the revision petitioner was the purchaser of the suit property as described in the decree in O.S.No.918/1975 dated 22.02.1984 and the first respondent was the decree holder and the 2nd respondent was the judgment debtor. Originally the suit was filed by the defendant for ejecting him from the property after removing the superstructure in the suit property. The said suit was decreed and an appeal has been preferred by the 2nd respondent before the 1st appellate court in A.S.No.49/85 and during the pendency of the appeal, a sale deed was executed by the 1st respondent/plaintiff in favour of the revision petitioner on 22.02.1984 in respect of the suit property. The said 1st appeal in A.S.No.49/85 was dismissed and the judgment and decree passed by the trial court in O.S.No.918/75 directing the ejectment of the 2nd respondent was up held and against which a second appeal in S.A.No.901/91 was preferred by the 2nd respondent before this Court. In the said 2nd appeal, the revision petitioner had filed an application to implead himself as one of the parties in C.M.P.No.14671/91. The said 2nd appeal was withdrawn by the 2nd respondent and the same was dismissed as withdrawn and consequently the C.M.P.No.14671/91 was also dismissed as infructuous. Therefore, the judgment and decree passed by the trial court in O.S.No.918/75 dated 25.03.78 was confirmed. In the meantime, the 1st respondent had again sold the property in Old Survey No.78 / New Survey No.78/1 having an extent of 3320 sq.ft., showing the same boundaries mentioned in the decree. The revision petitioner has filed the execution petition in E.P.No.25/92 on the basis of the dismissal of the 2nd appeal in S.A.No.901/91 and the same was admitted and notice was issued to both the respondents and the 2nd respondent/judgment debtor who had filed an application in E.A.No.469/92 for the dismissal of E.P.No.25/1992 and after having an enquiry, the said application was allowed by the lower Court on 10.06.1996 and the E.P. was dismissed. Aggrieved by the said orders passed by the lower court, the revision petitioner had preferred 2 revisions before this Court in C.R.P.NPD.Nos.583 and 584 of 1998. In the said circumstances, the 2nd respondent herein was shown as 1st respondent and the 1st respondent herein was shown as 2nd respondent. After hearing both sides, this Court had come to the conclusion of interfering and setting aside the orders passed by the lower court in EA.No.469/1992 dated 10.06.1996 and consequently, the said application filed by the 2nd respondent herein to dismiss the EP was dismissed. On the basis of the reversal orders passed by this Court, the lower court had passed an order of delivery of the suit property in EP No.25/1992 on 18.08.2008. Even before that the 2nd respondent herein(judgment debtor) preferred a review application in A.Nos.71 and 72 of 2007 before this Court for reviewing the order passed on 23.04.2007 and the said review applications were also dismissed by this Court. The 2nd respondent herein(judgment debtor) had taken the matter before the Hon'ble Supreme Court of India, challenging the orders passed in C.R.P.Nos.583 and 584 of 1998 dated 23.04.2007 and the said SLPs in CC.No.7306 and 7307 was dismissed as no merits, on 23.08.2007. As already stated the lower court had passed the delivery order on the basis of the decree passed in O.S.No.918/1975 dated 25.03.1978.
19. At this stage, the 1st respondent, the original decree holder had filed 3 applications in EA.Nos.55 to 57 of 2008 in EP.No.25/92 to set aside the exparte order passed against her in the EP and also to stay the execution proceedings and to dismiss the EP as not sustainable for the reasons stated in the affidavit in three applications respectively. After entertaining the counters filed by the revision petitioner and on hearing both sides, the lower court had come to the conclusion of allowing the application in EA.No.57/08 to dismiss the EP and consequently dismissed the EP.No.25/92. In view of the dismissal of the EP.No.25/92, the application to set aside the exparte order and the stay application were dismissed as infructuous. The said impugned orders passed by the lower court are now challenged in these revisions.
20. The revision petitioner purchased the property from the 1st respondent/decree holder on 22.02.1984 through a registered sale deed which is produced in page Nos.37 to 42 in the typed set. On a careful perusal of the said document, the 1st respondent had executed the sale deed on the basis of sale agreement dated 20.03.1978 and had paid a sum of Rs.10,000/- more than that of the said sale agreement price. In the said sale deed, the 1st respondent had given to the petitioner a right to continue the proceedings in the suit in O.S.No.918/75, all applications and necessary steps in the execution proceedings in O.S.No.918/75 be continued by the revision petitioner. The said sale deed was executed for due consideration to the suit property as described in O.S.No.918/1975. According to the learned Senior Counsel, appearing for the 1st respondent(original decree holder) that it was a conditional sale based upon the agreement dated 20.03.1978 and the rights given to the revision petitioner was to await the results of the appeal but the said sale deed was executed during the pendency of the appeal and therefore, it would not give the respondent an absolute ownership in the said property. It was the further case of the 1st respondent that she had executed a sale deed on 19.09.1991 with correct particulars of the property and the said sale deed will only convey the right, title in the suit property in favour of the 2nd respondent and therefore, the revision petitioner would not acquire any title to continue the execution proceedings.
21. Whether this argument could be advanced by the 1st respondent is the question to be answered. Even though, the agreement dated 20.03.1978 was entered into between parties with certain conditions, such conditions have not been incorporated or followed in the execution of the sale deed dated 20.02.1984. On cursory look of the terms of the sale deed, it was executed by the 1st respondent as an out and out sale deed with absolute rights conferred upon the revision petitioner. The said right conveyed by the 1st respondent in favour of the revision petitioner was also for continuing the execution proceedings in O.S.No.918/75. Therefore, it cannot be argued on the side of the 1st respondent that the sale deed would be attached with the conditions imposed in the said agreement of sale. Those conditions in the agreement of sale were not pursued by the 1st respondent to attach with the sale deed but she had conveyed the absolute right in the suit property in favour of the revision petitioner. However, it was contended that the same 1st respondent had sold the suit property with correct description to the 2nd respondent on 19.09.91 and the said sale deed with correct description of the property would only will prevail over the sale deed executed in favour of the revision petitioner on 22.02.1984. Whether such contention is true is also an important question to be answered.
22. In the description of the property mentioned in the sale deed dated 19.09.1991 executed in favour of the 2nd respondent, the 1st respondent had mentioned the Survey No.78 for an extent of 3320 sq.ft of the property. In the earlier sale deed executed by the 1st respondent in favour of the revision petitioner, the survey number was mentioned as 248/2 of an extent of 1 = grounds. However, the boundary descriptions mentioned in the sale deed dated 22.02.1984 in favour of the revision petitioner and in sale deed dated 19.09.1991 executed in favour of the 2nd respondent, are one and the same in all sides. It was brought to the notice of the Court that the boundaries would prevail over the survey numbers as well as the extent when there are conflicts in between the two. For that the judgment of this Court reported in ILR 30 Madras 397(Karuppa Goundan alice Thoppala Goundan v. Periathambi Goundan) was referred to. The relevant passage would run as follows:-
"That is just the present case. A case exactly similar to the present case will be found reported in Santaya v. Savitri (1) where Jenkins, C.J., said, 'It is clearly settled that where there is sufficient description set forth of the premises by giving the particular name of the field or otherwise, a false description added thereto may be rejected' and the Court held that the addition of a wrong survey number did not invalidate the plaintiff's claim, the land being otherwise sufficiently identified."
23. Yet another judgment of privy council reported in AIR 1948 PC 207 (The Palestine Kupat Am Bank Co-operative Society Ltd., v. Government of Palestine and others) has also been cited for the same proposition of law.
"7. ... Their Lordships find it unnecessary to resolve this difference as, even if Art.47 does not in terms govern the grant of 1882, the principle of preferring a description by fixed boundaries to a conflicting description by area cannot be so restricted. In the view of the Board that principle is applicable to the construction of the grant in question. In English law the statement as to area therein would be rejected as falsa demonstratio and their Lordships' attention has not been called to, nor are they aware of, any provision of Ottoman law to the contrary effect. On these grounds they hold that what was granted in 1882 was what was contained by the boundaries as now determined."
24. In the judgment of the Hon'ble Apex Court reported in AIR 1963 SC 1879 (Sheodhyan Singh and others v. Mst.Sanichara Kuer and others) it has been categorically found as follows:-
"7.... In these circumstances, we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is plot No.1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned . But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."
25. The judgment of Hon'ble Apex Court reported in 2006(5) SCC 466 (Subhaga v. Shobha) would also go to show that the boundary description will prevail over other misdescription of Survey Number or extent. The relevant passage would be as follows:-
"That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff."
26. In view of the dictum laid down by this Court as well as the Hon'ble Apex Court and privy council, we could see that the description of boundary would prevail over survey number and extents in order under to identify the property. I have already discussed that the boundary description of both sale deeds dated 22.02.1984 executed by the 1st respondent in favour of the revision petitioner and the sale deed dated 19.09.1991 executed by the 1st respondent in favour of the 2nd respondent are referring to the same description of boundaries even though the survey numbers and extent are differently stated. No doubt, the property description in the sale deed dated 22.02.1984 are quite tallying with the property description in the decree as well as in the EP. The case of the 1st respondent before the lower Court was that the suit property was sold to the 2nd respondent and therefore, the case against the 2nd respondent cannot be sustained.
27. Therefore, the property sought to be sold with different description of survey numbers and extent was intended only with regard to the suit property only. Apart from that the boundary description also tally and therefore, the property sold by the 1st respondent on 22.02.1984 to the revision petitioner and on 19.09.1991 to the 2nd respondent by the 1st respondent are one and the same.
28. When the same property has been sold by a single person to different parties what would be the right passing there from is the next question. In the judgment of this Court reported in AIR (33) 1946 Mad 140 (Duraisami Reddi v. Angappa Reddi and another), this Court held as follows:-
"The law gives four months' period for registration and if the document is registered within that date, the subsequent transferee cannot be heard to say that as he got his document without notice, and during this period allowed to the earlier transferee, got his own document registered he must be deemed to be a bona fide purchaser for value. Such a plea, if allowed, would lead to much fraud. If a later document registered earlier is to prevail over an earlier document registered later it would always be easy for the vendor and the later purchaser to enter into a transaction within the time given for registration of the earlier document and get the new deed registered immediately and thus defeat the purchaser under the earlier deed. The correct proposition is set down in the following short passage in Mulla's Indian Registration Act under S.47, "if there is a competition between registered documents relating to the same property, the document executed first in order of time has priority over the other, though the former document may not have been registered until after the latter."
29. Yet another judgment of this Court reported in AIR 1960 Mad 396 (Ramaswami Pillai v. Ramasami Naicker and others) was also relied upon by the revision petitioner. The relevant passage would run as follows:-
"A sold certain property to B by a deed executed on 17.06.1950 and registered on 26.06.1950. A sold the same property to C by a deed dated 14.06.1950 and compulsorily registered on 12.10.1950. But the sale in B's favour was as a matter of fact, executed anterior in point of time to the sale in favour of C which was ante-dated.
Held that in view of S.47. Registration Act and S.48, Transfer of Property Act. B's sale must prevail over C's sale."
30. In view of the principles laid down by this Court regarding the sale deeds executed by the same person in respect of the same property to different persons, I could see that the earlier sale deed will prevail over the subsequent sale deed. When the principle laid down by this Court is applied to the present case, the sale deed executed by the 1st respondent in favour of the revision petitioner on 22.02.1984 would prevail over the sale deed dated 19.09.1991 executed by the 1st respondent in favour of the 2nd respondent.
31. However, it has been argued that the revision petitioner did not take any steps to implead himself as a party to the proceedings even though the 1st appeal was pending on the date of execution of the sale deed dated 22.02.1984 and therefore, the provisions of Section 41 of the Registration Act would apply. It has been argued that the revision petitioner would be an ostensible owner and since he had no participation in the 1st appeal and the 1st appeal was let by him to be proceeded by the 1st respondent herself, he cannot be subsequently claim on the foot of the sale deed dated 22.02.1984. For that the learned counsel for the revision petitioner would rely upon a judgment rendered by this Court in CRP.NPD Nos.583 and 584 of 1998 dated 23.04.2007 in which the case of the 2nd respondent that the revision petitioner as an ostensible owner was negatived and the finding of this Court made in CRP.NPD.Nos.583 and 584 of 1998 would be binding upon all parties to the said revisions. The said findings given by this Court was confirmed by the Hon'ble Apex Court in its judgment dated 23.08.2007 in CC.No.7306 and 7307 of 2007. However, it was argued by the learned Senior Counsel that the lower court was correct in finding that certain facts were not brought to the knowledge of the Court by the revision petitioner and the same was amounting to fraud and if fraud has been brought to the notice of the Court whether the order was passed by superior or inferior court, such orders would not bind the said court to pass subsequent orders by the lower court. For that he has relied upon a judgment of the Hon'ble Court reported in (1994) 1 SCC 1(S.P.Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs and others). The relevant passage would be as follows:-
"The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court has to treated as a nullity by every court , whether superior or inferior. It can be challenged in any court even in collateral proceedings.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he would be guilty of playing fraud on the court as well as on the opposite party."
32. On a careful perusal of the above dictum laid down by the Hon'ble Apex Court we have to see, would there be any fraud committed in this case by the revision petitioner is a question of fact. When I go through the orders passed by the lower court, I could not see any reason as to fraud was stated by the lower court to differ with the order passed by this Court as confirmed by the Hon'ble Apex Court based on the plea of fraud played upon the Court. No doubt, it is true that in an earlier occasion, this Court had elaborately discussed in respect of the same issue as to the validity of the sale deed dated 22.02.1984 regarding the question of the character of the ostensible ownership under Section 41 of Transfer of Property Act and it had come to the conclusion that the present revision petitioner was not an ostensible owner and the 2nd respondent (who was the 1st respondent therein) was not a buyer after getting a different encumbrance certificate for knowing the encumbrance and therefore, the revisions preferred by the revision petitioner (here also) were allowed by this Court which was confirmed by the Hon'ble Apex Court. In the absence of any plea of fraud and on same finding of fraud, the lower court cannot go beyond the findings reached by this Court as confirmed by the Hon'ble Apex Court.
33. The provisions of Section 11 and Explanation (vii) would squarely apply to the execution proceedings. The said provisions would be as follows:-
Section 11 of CPC:
Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
34. The judgment as cited by the learned counsel for the revision petitioner would also guide us to arrive to such conclusion that the lower court was barred from taking any other decision than the orders of this Court passed in CRP.NPD.Nos.583 and 584 of 1998 dated 23.04.2007. In the judgment of the Hon'ble Apex Court reported in (1995) 3 SCC 693 (Mahboob sahab v. Syed Ismail and others) it is laid down as follows:-
"8. Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial court negatived the plea of res judicata as a preliminary issue. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the appellate court on its basis. Thereby the findings of the trial court that the decree in OS.No.3/1/1951 does not operate as res judicata became final. The question then is whether the doctrine if res judicata stands attracted to the facts in this case. It is true that under Section 11 CPC when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed, litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. But for application of this doctrine between co-defendants four conditions must be satisfied, namely that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. This is the settled law as held in Syed Mohd. Saadat Ali Khan V. Mirza Wiquar Ali Beg; Shashibushan Prasad Mishra v. Babuji Rai; and Iftikhar Ahmed V. Syed Meharban Ali. Take for instance that if in a suit by 'A' against 'B & C', the mater is directly and substantially in issue between B & C, and an adjudication upon that matter was necessary to determine the suit to grant relief to 'A'; the adjudication would operate as res judicata in a subsequent suit between B & C in which either of them is plaintiff and the other defendant. In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound by the decree."
35. In the judgment passed by this Court in CRP.NPD.Nos.583 and 584 of 1998 dated 23.04.2007, this Court had categorically dealt with the sale deeds dated 22.02.1984 and 19.09.1991 and had come to the conclusion in para 29, which are as follows:-
"29. In the light of above factual aspects, I am of the considered view that 1st respondent has not acted in good faith and has not taken reasonable care to ascertain that 2nd respondent had the power to execute the sale deed on 19.09.1991. Therefore, Sec.41 of the Transfer of Property Act will not save the sale deed dated 19.09.1991 and the revision petitioner on the basis of the sale deed dated 22.2.1984 is very much entitled to execute the decree granted in favour of 2nd respondent in O.S.No.918/1975. As the executing court has wrongly allowed the Sec.47 application filed in E.A.No.469/1992, the same is liable to be interfered with by this court and accordingly the order dated 10.06.1996 made in E.A.No.469/1992 in E.P.No.25/1992 is hereby set aside."
36. The lower court, which had dealt with the same matter, once again, in the applications preferred by the 1st respondent, had come to a different conclusion which is against the principles of law laid down by the Hon'ble Apex Court as well as the provisions of Section 11 of CPC. The 1st respondent was also a party to the proceedings throughout and admittedly she wanted to set aside the exparte order passed against her in the execution proceedings by stating certain reasons. The lower court ought to have seen that she was also a party to the proceedings as well as the order passed by the court below as well as this Court and therefore, the said orders would be binding upon her. The court below had entertained the application filed by the 1st respondent in EA No.57/08 and treated it as an application under Section 47 challenging the proprietary right of the revision petitioner to continue the execution proceedings. The findings regarding the right of the revision petitioner to continue the proceedings have been already decided by this Court and the revision petitioner was permitted to launch execution proceedings. The judgment as cited by the learned counsel for the revision petitioner reported in AIR 1979 SC 1066 (Zila Singh and others v. Hazari and others) would be relevant to be followed in this case. The relevant passage would run as follows:-
"14. In this connection it would be advantageous to refer to Saila Bala Dassi v. Nirmala Sundari Dassi, 1958 SCR 1287:(AIR 1958 SC 394) wherein it has been in terms held that S.146 was introduced for the first time in Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficient provision should be construed liberally so as to advance justice and not in a restricted or technical sense. Viewed from this angle the present appellants must succeed because they purchased land from pre-empter Neki and the validity of sale being now beyond dispute, they are persons claiming under Neki whose right to execute the decree was never disputed and, therefore, applicants be able to maintain an application for execution under S.146 of the Code of Civil Procedure. Appellants are thus entitled to execute the decree for possession."
37. The judgment reported in AIR 1958 SC 394 (Saila Bala Dassi v. Nirmala Sundari Dassi and another) was also referred in support of the case of revision petitioner. In the earlier judgment of the Hon'ble Apex Court reported in AIR 1979 SC 1066 (Zila Singh and others v. Hazari and others), this case was referred to and was followed. When we apply the the principles laid down by the Hon'ble Apex Court, I could see that even without any reference as to the grant of any right of continuing the proceedings, the revision petitioner was entitled to continue the execution proceedings on behalf of the original decree holder namely the 1st respondent. We have already seen that the 1st respondent had given a right in the sale deed dated 22.02.1984 that the revision petitioner can continue the proceedings including execution proceedings in O.S.No.918/75 under the color of the right given in the said sale deed. When the 1st respondent has given such right and also conveyed the entire right to the suit property to the revision petitioner, how she can come forward with the applications to dismiss the E.P., and also to set aside the exparte order passed against her. The said applications could be termed as abuse of process of law as referred to in the judgment of the Hon'ble Apex Court reported in (2009) 6 SCC 609(Sardar Estates v. Atma Ram Properties Private Limited). The relevant portion of the judgment would be as follows:-
"9. It is evident that after the first round of litigation was over the tenant started a second round of litigation on frivolous grounds which was a flagrant abuse of the process of the court. This is a practice which has become widespread, and which the Court cannot approve of, otherwise no judgment will ever attain finality. Hence, we dismiss this appeal and impose a cost of Rs.10,000/-(Rupees ten thousand only) on the appellant which shall be paid to the respondent within two months from today. The appellant shall also hand over the premises in question, which is in his possession, to the landlord within three months from today failing which he will be evicted by police force."
38. No doubt, this Court had already come to a conclusion regarding the sale deeds dated 22.02.1984 and 19.09.1991 and consequently the revision petitioner was found entitled to continue the execution proceedings as against the respondent herein. The 1st respondent who was very much aware of the right conveyed by her to the revision petitioner and was aware of the execution proceedings launched against her even if the service of notice before the execution court was not effected, cannot raise the plea of ignorance as raised by the 2nd respondent/judgment debtor before this Court. The same was not recognised and was put a full stop by this Court in its order in CRP.NPD.Nos.583 and 584 of 2007 dated 23.04.2007 and the said orders were confirmed by the Hon'ble Apex Court. The 1st respondent had again taken the same plea which was decided by this Court knowing full well that the property conveyed by her to the revision petitioner cannot be conveyed once again to the 2nd respondent. The lower court without going into all these facts and circumstances of the case and the principles of law, had without any reasons and the proof of fraud had allowed the application filed by the 1st respondent in EA No.57 of 2008 which is contrary to law and facts. The right conveyed by the 1st respondent to the revision petitioner which was recognised by this Court as well as by the Hon'ble Apex Court was defeated by an unlawful order passed by the lower court. The reasons given by the lower court are quite unknown to law and the findings reached by this court. Therefore, I have no hesitation to interfere with the orders passed by the Court below in allowing the application filed in EA No.57 of 2008 and the order of dismissal passed in EP No.25/92 in its order dated 19.03.2009 and to set aside the same.
39. Consequently, the civil revision petition filed by the revision petitioner in both the revisions are ordered with exemplary costs of Rs.5,000/- one set, to be paid by the 1st respondent to the revision petitioner since the 1st respondent had filed those applications before the lower court knowing fully well about the earlier decision of this court and thereby abusing the process of the Court to prolong the proceedings in collusion with the 2nd respondent. Consequently, connected CMPs are closed.
vsi/ssn To The District Munsif, Ponneri