Madras High Court
Thirugnanasambandam vs Sundaramurthy Chettiar on 18 June, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.06.2014 CORAM THE HONOURABLE Mr.JUSTICE P.R.SHIVAKUAMR C.R.P.(NPD) Nos.129 and 130 of 2014 and M.P.Nos.1 of 2014 Thirugnanasambandam ... Petitioner in both CRPs Vs. 1.Sundaramurthy Chettiar 2.P.Kaliaperumal 3.The Junior Engineer TANGEDCO Kurinjipadi Cuddalore District 4.The Executive Engineer TANGEDCO Kurinjipadi Cuddalore District ... Respondents in both CRPs Prayer in C.R.P.(NPD) No.129/2014: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the docket order dated 21.12.2013 made in I.A.No.258/2013 in A.S.No.74/2013 on the file of the Principal District Judge, Cuddalore. Prayer in C.R.P.(NPD) No.130/2014: Civil Revision Petition filed under Article 227 of the Constitution of India to strike off the appeal in A.S.No.74/2013 on the file of the Principal District Judge, Cuddalore. For Petitioner :Mr.N.Suresh in both CRPs For Respondents :Mr.R.Gururaj for R1 in both CRPs O R D E R
The second respondent Kaliaperumal filed a suit for specific performance in respect of the suit property based on an agreement for sale dated 19.09.1992 in O.S.No.2/2005 on the file of the Sub Court, Cuddalore against Thirugnanasambandam, namely the petitioner herein. In the said suit, Thirugnanasambandam, the revision petitioner herein, besides resisting the prayer for specific performance, made a counter claim for recovery of possession of the suit property from the plaintiff therein. After trial, the trial court decreed the suit for specific performance and dismissed the counter-claim made by Thirugnanasambandam by its judgment and decree dated 28.1.2010. The said decree was confirmed by the appellate judge, namely the Additional District Judge (Fast Track Court No.2), Cuddalore in A.S.No.30/2010.
2. As against the decree of the said court dated 29.03.2011 made in A.S.No.30/2010, Thirugnanasambandam preferred a second appeal in S.A.No.777/2011 on the file of this court. This court, by its judgment dated 30.04.2013 allowed the second appeal filed by Thirugnanasambandam, dismissed the suit O.S.No.2/2005 on the file of the Sub Court, Cuddalore filed by Kaliaperumal and decreed the counter-claim made by Thirugnanasambandam as defendant in the said suit and directed Kaliaperumal to hand over vacant possession of the suit property to Thirugnanasambandam and also to pay damages for use and occupation at the rate of Rs.450/- per month from the date of plaint till delivery of possession.
3. As against the judgment and decree of this court dated 30.04.2013 made in S.A.No.777/2011, Kaliaperumal preferred a Special Leave Petition in S.L.P.(Civil) No.27029/2013 before the Honble Supreme court. The Honble Supreme Court, by its order dated 09.09.2013, refused leave and dismissed the petition. Thereafter, Thirugnanasambandam filed an Execution Petition in E.P.No.199/2013 on the file of the Additional Sub Judge, Cuddalore for recovery of possession in accordance with the decree granted in his favour. An order came to be passed in the said petition on 27.11.2013 directing delivery of possession by 16.12.2013.
4. Meanwhile, one Sundaramurthy Chettiar, the first respondent in the civil revision petitions, preferred an application on the executing side as unnumbered E.A.No.__/2013 in E.P.No.199/2013 in O.S.No.2/2005 under Order XXI Rules 97 to 103 CPC claiming that he had become a tenant under Kaliaperumal (the judgment debtor) by virtue of a written rental agreement dated 16.09.2013 for a monthly rent of Rs.5,000/- per month and paid a sum of Rs.10,00,000/- as deposit; that as he apprehended steps for forcible eviction being taken, he filed a suit in O.S.No.252/2013 on the file of the District Munsif Court, Cuddalore for permanent injunction against the said Kaliaperumal (the judgment debtor); that in the meanwhile Kaliaperumal suffered a decree for recovery of possession in the counter-claim made by Thirugnanasambandam in O.S.No.2/2005 on the file of Sub Court, Cuddalore; that the order for effecting delivery passed by the Executing court on 22.11.2013 in E.P.No.199/2013 was not binding upon him and that he, having become bonafide tenant without the knowledge of the suit, his possession should be protected and only a symbolical delivery could be ordered. He was also prepared to attorn the tenancy in favour of the person, who shall be the actual owner as per the orders of this court.
5. The learned Judge of the executing court (I Additional Subordinate Judge, Cuddalore), by order dated 11.12.2013, dismissed the said claim petition filed by Sundaramurthy Chettiar, without even numbering it holding that such a petition was not maintainable. As against the said order dismissing the un-numbered claim petition in E.A.No.___/2013 in E.P.No.199/2013 in O.S.No.2/2005 on the file of the Subordinage Jude, Cuddalore, Sundaramurthy Chettiar preferred an appeal on the file of the District Court, Cuddalore. Along with the appeal, an application for stay of further proceedings in E.P.No.199/2013 in O.S.No.2/2005 on the file of the executing court, namely the I Additional Subordinate Judge, Cuddalore also was filed. The said appeal was taken on file and numbered as A.S.No.74/2013, whereas the stay petition was taken on file as I.A.No.258/2013 in A.S.No.74/2013 by the learned Principal District Judge. Besides numbering the appeal and the stay petition, the learned Principal District Judge, Cuddalore granted an ex-parte order of stay of all further proceedings in E.P.No.199/2013 till the next hearing date, namely 21.01.2014. As against the order dated 21.12.2013 made in I.A.No.258/2013 in A.S.No.74/2013 granting stay of all further proceedings in E.P.No.199/2013, Thirugnanasambandam has filed C.R.P.(NPD) No.129/2014. As against the numbering of the appeal, Thirugnanasambandam has preferred C.R.P.(NPD) No.130/2014. Both the civil revision petitions came to be filed invoking the power of superintendence of this court over the subordinate courts under Article 227 of the Constitution of India on various grounds set out in the memorandum of grounds in each one of the civil revision petitions.
6. Notice before admission was given to the respondents in the civil revision petitions and Sundaramurthy Chettiar, the first respondent herein has entered appearance through counsel. On the basis of an endorsement made by the learned counsel for the revision petitioner, the revision petitioner was permitted to drop and give up respondents 2 to 5, as no relief has been sought against them.
7. The arguments advanced by Mr.N.Suresh, learned counsel for the petitioner in both the revision petitions and by Mr.R.Gururaj, learned counsel for the first respondent in both the revisions were heard. The materials available on record were also perused.
8. It is the contention of the learned counsel for the revision petitioner that the first respondent, after suffering a decree in the counter-claim made by the revision petitioner in O.S.No.2/2005 on the file of the Principal Sub Court, Cuddalore for recovery of possession of the suit property from Kaliaperumal, namely the plaintiff therein and after he had unsuccessfully moved a special leave petition before the Honble Supreme Court, simply inducted Sundaramurthy Chettiar, the first respondent in both the revision petitions, to make and set him up as a tenant in respect of the suit property and he was made to file a claim petition in an unnumbered E.A.No._/2013 in E.P.No.199/2013 contending that he, having become a bonafide tenant under the judgment debtor in O.S.No.2/2005 without having notice of the pendency of the case and the decree passed thereon, his rights should be protected. It is the further contention of the learned counsel for the revision petitioner that such a collusive application came to be filed based on an alleged transaction of lease agreement entered into with a view to prevent the revision petitioner/decree holder from enjoying the fruits of the decree granted in his favour, as an abuse of process of court and that therefore, the same was rightly dismissed by the executing court as not maintainable.
9. The learned counsel for the revision petitioner in both the revision petitions contended further that the first respondent herein having chosen to enter into a lease arrangement with the judgment debtor, was bound by the decree made against the decree holder and hence the claim made by him on the basis of such derivation of right from the judgment debtor could not be legally entertained. Based on the above said contention of the revision petitioner, learned counsel for the revision petitioner argued that the appellate judge, namely the Principal District Judge, Cuddalore, improperly exercised the appellate jurisdiction in numbering the appeal without considering the question of maintainability of the appeal and in granting ex-parte interim stay of all further proceedings and thereby hacking the execution of the decree passed in favour of the revision petitioner/decree holder in O.S.No.2/2005.
10. Per contra, Mr.R.Gururaj, learned counsel for the first respondent contended that the first respondent became a statutory tenant under the written rental agreement dated 16.09.2013 paying a sum of Rs.10,00,000/- as advance; that he entered into the said transaction without notice of the prior proceedings and the decree passed in favour of the revision petitioner and that hence his right under the tenancy arrangement made with the judgment debtor in O.S.No.2/2005, should be protected by directing symbolical delivery of possession alone, leaving the actual possession with the first respondent. It is his further contention that an order dismissing the claim petition under Order XXI Rules 97 to 103, is an appealable order as a decree passed in a suit and that hence the numbering of the appeal by the learned Principal District Judge, Cuddalore could not be successfully challenged invoking the power of this court under Article 227 of the Constitution of India. It was also his contention that since the appeal was properly numbered, the protection granted to the first respondent herein by granting ad-interim stay granted in the stay petition in I.A.No.258/2013 in A.S.No.74/2013 also could not be challenged successfully under Article 227 of the Constitution of India.
11. Even though a number of judgments have been cited in support of the contentions raised on both sides, it is unnecessary to refer to all those judgments and it will be sufficient to make a reference to the latest judgments of a single judge of this court and a Division Bench of this court and a judgment of the Supreme Court.
In Vijayalakshmi Leather Industries (P) Ltd. Chennai V. K.Narayanan and others reported in AIR 2003 MADRAS 203, a Division Bench of this court held that a transferee from the judgment debtor occurring in Rules 98 and 108 of Order XXI of CPC would include a transferee of a transferee from the judgment debtor and he is bound by the ultimate decision in view of section 52 of the Transfer of Property Act, 1882, since the transfer of property had been made pendente lite. The relevant paragraphs are extracted here under:
"12. As already stated, the contention of the learned counsel for the appellant cannot be accepted. When Section 52 of the Transfer of Property Act makes it clear that no party to the proceeding can transfer any property which is the subject matter of litigation, the transferee from the party to the proceeding or the judgment debtor cannot have any valid independent title than that of the judgment debtor. Hence, the transfer made by one of the parties to the proceeding pendente lite to subject to the result of the litigation and there is no absolute transfer of right or title in favour of the transferee. Hence, by way of subsequent transfers, such subsequent transferee can derive whatever the right their transferor i.e., the transferee from the judgment-debtor or the party to the proceeding had and nothing more. When the transferee from the judgment-debtor has no absolute or perfect title and the rights being subject to the result of the litigation, it is not known as to how the transferee from the transferee of the judgment-debtor can have a better right then his vendor or his vendor's vendor.
13. If such contention of the learned senior counsel for the appellant is to be accepted, then we are closing our eyes regarding the intention of the statute. It is obvious while interpreting the provisions of the statute, the Court must give due weight to the intention of the statute in order to give effect to the provisions. If any narrow interpretation is given and thereby the purpose of the statute is being defeated, the Courts must be careful to avoid such interpretations. If we look at Section 52 of the Transfer of Property Act and Rule 102 of Order 21 CPC, it is very clear that the intention of the Parliament with which the statute had been enacted is that the rights of one of the parties to the proceeding pending before the Court cannot be prejudiced or taken away or adversely affected by the action of the other party to the same proceeding. In the absence of such restriction one party to the proceeding, just to prejudice the other party, may dispose of the properties which is the subject-matter of the litigation or put any third party in possession and keep away from the Court. By such actions of the party to the litigation the other party will be put to more hardship and only to avoid such prejudicial acts by a party to the litigation these provisions are in existence. When in spite of such statutory restrictions, for the transfer of the properties, which are the subject-matter of litigation by a party to the proceeding, the Courts are duty bound to give effect to the provisions of the statute."
In S.Rajan vs. A.Suriyanarayanan and Others reported in (2007) 5 MLJ 730, when posed with a question of propriety of rejection of a claim petition without even numbering it arose before this court, I myself referred to the judgment of the Supreme Court in Narayana Sarma, N.S.S. v. Goldstone Exports P. Ltd. reported in 2001 (4) CTC 755, made an observation that when a person purchases from the judgment-debtor or his legal representative pendente lite or after the passing of the decree, such purchaser shall not have a better right or title and that such purchaser shall be bound by the decree as the judgment-debtor himself. The following observations have been made by the Supreme Court in the judgment referred above.
"16. If the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution Court has to hold that he has no right to resist in view of the clear language contained in Rule 102..... In other words, the Court is not obliged to determine a question merely because of the resister raised it. The questions which the executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration between the parties, e.g., if the obstructor admits that he is a transferee pendente lite it is not necessary to determine the question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings."
The following was the view expressed by this court in S.Rajan's case cited above:
" In view of clear and emphatic declaration of law on this point by the Honourable Supreme Court and the High Courts, this Court accepts the contention of the learned counsel for the contesting respondent that the Courts below were right in holding that the appellant's claim was liable to be rejected even without numbering the claim petition. The above said observations made by the Hon'ble Supreme Court as well as the High Courts shall be a fitting answer to the contentions made by the learned counsel for the appellant and to discountenance his contentions that the courts below have committed an error in rejecting the claim of the appellant even without numbering the claim petition."
12. The Hon'ble Supreme Court also dealt with the same question in Usha Sinha vs. Dina Ram and Others reported in (2008) 7 SCC 144. The following were the observations made in the said case.
"Bare reading of the Rule (R.102 of Order 21 CPC) makes it clear that it is based on justice, equity and good conscience. A transferee from the judgment-debtor is presumed to be aware of the proceedings before a court of law. He should be careful before he purchases the property which is the subject-matter of litigation. It recognises the doctrine of lis pendens recognised by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realise the fruits of his decree. Every time the decree-holder seeks a direction from a court to execute the decree, the judgment-debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the Rule has been enacted."
The Hon'ble Supreme Court also made the following observations:
"It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of "lis pendens" prohibits a party from dealing with the property which is the subject-matter of suit. "Lis pendens" itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21."
13. If the law declared by the Hon'ble Apex Court as indicated supra, is applied to the facts of the case, there can be no doubt regarding the position that the first respondent herein, being the transferee of the judgment-debtor and the transfer (lease) was effected after the passing of the decree against his transferor and in favour of the first respondent herein for recovery of possession of the suit property, the first respondent herein shall not have the right to offer resistance or obstruction to the execution of the decree and he is bound by the decree passed against his transferor (lessor), as he himself is the judgment-debtor for the simple reason that he got no better right than that of his transferor (judgment-debtor). Since the transfer of right (creation of lease) is said to have been made after the passing of the decree against the judgment-debtor and after the dismissal of the Special Leave Petition filed before the Supreme Court seeking leave to file an appeal against the decree passed by this court, the first respondent herein, shall be very much bound by the decree as if he himself is the judgment-debtor. Being a transferee after the passing of the decree, the first respondent cannot be heard to contend that his claim petition should not have been rejected without even numbering it. The very observations made by the Hon'ble Apex Court in Usha Siha's case will be attracted to the facts of the case to support the decision against the first respondent herein. Moreover, it is a glaring example of abuse of process of court on the part of the first respondent herein in collusion with the judgment-debtor.
14. The suit was filed by Kaliaperumal (judgment-debtor), namely the second respondent herein, for the relief of specific performance based on an alleged agreement for sale. The revision petitioner, who was the defendant in the said suit, resisted the suit contending that the plaintiff Kaliaperumal was not entitled to the relief of specific performance, as the suit was barred under Order II Rule 2 CPC in view of an earlier suit filed by him, which came to be withdrawn. The earlier suit came to be filed for the relief of permanent injunction not to alienate the suit property in favour of any third person and not to interfere with his possession and enjoyment of the suit property. Though the second respondent herein/judgment-debtor took a stand in his earlier suit for permanent injunction that he had entered into an agreement with the revision petitioner herein for purchasing the suit property and he was in possession of the suit property in part performance of the agreement for sale, the suit was resisted denying the genuineness of the agreement for sale propounded by the second respondent herein/plaintiff in the said suit. For deciding the question of genuineness of the agreement, the disputed document along with the documents containing the admitted signatures of the revision petitioner (the defendant in the said suit) was referred to the Forensic Laboratory for the opinion of handwriting expert. Thereafter the second respondent herein, who was the plaintiff in the said suit chose to file O.S.No.2/2005 for specific performance and withdraw the earlier suit O.S.No.372/2002 filed for permanent injunction. The said act on the part of the second respondent herein/plaintiff in the case was considered by this court in S.A.No.777 of 2011 and this court held that the same could be viewed as an abuse of process of court on the part of the first respondent therein/plaintiff, who is none other than the second respondent in the present CRPs. This court also gave a clear finding that the suit for specific performance was barred by Order II Rule 2 CPC. On merits also, it held that the agreement propounded by the second respondent in the CRPs/plaintiff in the suit, was not proved to be genuine and on the other hand, knowing fully well that the Forensic expert had given a report opining that the signature found in the agreement for sale, based on which the second respondent herein/plaintiff filed the suit, did not tally with the admitted signature of the revision petitioner herein, who was the first defendant in the said suit, chose to withdraw the earlier suit on account of which he was asked to pay cost in the earlier suit and proceed with the suit concerned in these CRPs for specific performance, was nothing but an attempt at abuse of process of court. In the said suit itself, the revision petitioner herein, who was the first defendant in the said suit, had made a counter-claim for the recovery of the suit property from the second respondent/plaintiff. This court, in the second appeal in S.A.No.777/2011, dismissed the claim of the plaintiff for specific performance and allowed the counter-claim of the first defendant (revision petitioner herein) for recovery of possession of the suit property from the second respondent herein (Kaliaperumal)/plaintiff in the said suit.
15. As against the decree passed by this court, the second respondent herein, who was the judgment-debtor, as the counter-claim made by the revision petitioner was allowed against him, preferred a Special Leave Petition before the Hon'ble Supreme Court in SLP (Civil) Nos.27029/2013. The Hon'ble Supreme Court refused leave and dismissed the SLP by order dated 09.09.2013. After the dismissal of the SLP, the executing court passed an order against the second respondent herein, namely Kaliaperumal/judgment debtor (plaintiff in O.S.No.2/2005) directing delivery of possession of the suit property to the revision petitioner herein/decree-holder (defendant in O.S.No.2/2005). The said order was dated 22.11.2013. Thereafter, the first respondent herein was set up by the judgment-debtor/second respondent in the CRPs to offer resistance and provide obstruction, based on which, he filed a petition under Order XXI Rules 97 to 103 CPC in unnumbered E.A.No.___/2013 in E.P.No.199/2013 in O.S.No.2/2005 contending that he entered into a rental agreement in writing on 16.09.2013 agreeing to pay Rs.5,000/- per month as rent and making a payment of Rs.10,00,000/- as deposit. His further contention raised in the said un-numbered EA is that though the Rent Deed was executed for a period of 11 months alone, it was mutually agreed that he would be allowed to do business in the suit property at least for 10 years and that pursuant to the execution of the Rent Deed, he had taken possession of the suit property and he is doing business there. The learned Judge of the Executing Court, without numbering it, heard the arguments regarding maintainability and passed a detailed order on 11.12.2013 rejecting the said claim petition as not maintainable.
16. Admittedly, the alleged lease transaction, based on which the claim was made by the first respondent herein before the Executing Court, was dated not only subsequent to the decree passed by this court in S.A.No.777/2011, but was subsequent to the dismissal of SLP preferred against the judgment and decree of this court in S.A.No.777/2011. The SLP came to be dismissed at the admission stage itself on 09.09.2013. Thereafter, the judgment-debtor Kaliaperumal kept quiet till the decree-holder Thirugnanasambandam, namely the revision petitioner, filed E.P.No.199/2013 for execution of the decree passed in the counter-claim made by him in O.S.No.2/2005 for recovery of possession and an order came to be passed on 22.11.2013 in the execution petition for delivery of possession and set up Sunaramurthy Chettiar, the first respondent herein to offer resistance and file the claim petition. The Rent Deed itself is said to have been executed by Kaliaperumal in favour of Sundaramurthy Chettiar only on 16.09.2013. It will be very much obvious from the fact that, within a week from the date of dismissal of the SLP, the second respondent herein/Kaliaperumal, with a view to prevent Thirugnanasambandam, the decree-holder, from enjoying the fruits of the decree, could have created such a document and set up the first respondent herein/Sundaramurthy Chettiar as an obstructor. The further fact that the first respondent herein/obstructor claimed to have paid a sum of Rs.10,00,000/- as advance (deposit) when the monthly rent itself was allegedly fixed at Rs.5,000/-, will show how far the first respondent/obstructor and the second respondent/judgment-debtor had chosen to traverse towards the creation of documents for initiating proceedings as an abuse of process of court. No one will come forward to part with Rs.10,00,000/- as advance to get a property at a monthly rent of Rs.5,000/-, that too without being evidenced by a registered document.
17. In the case on hand, the first respondent herein/obstructor contended that the Rent Deed was executed on 16.09.2013 and it was registered before a Notary Public. It was also contended that though the Rent Deed as per the period was confined to 11 months, it was orally agreed by mutual consent that the first respondent/obstructor would be allowed to do business in the suit property at least for 10 years. Notary Public cannot be equated with a Registering Authority. He cannot discharge the duties of a Registrar. Authentication by the Notary Public will not amount to registration, as per the Registration Act, 1908. All the above said aspects will go to show that the judgment-debtor and the obstructor, colluding together, created such document and filed the claim petition in the executing court, with a view to see that the decree-holder, namely the revision petitioner herein/the defendant in O.S.No.2/2005, is prevented from enjoying the fruits of the decree for recovery of possession of the suit property for ever or at least for a period of 10 years. The same will no doubt, amount to an abuse of process of court. The precedents in this regard support the view that such a claim made by the transferee from the judgment-debtor need not be adjudicated upon, since he cannot place reliance either on Rule 98 or Rule 100 of Order XXI of CPC. However, the learned counsel for the first respondent/obstructor contended that the rejection of the claim application, namely unnumbered E.A.No.___/2013, without numbering it, could be equated to the rejection of the plaint in a suit and that hence the numbering of the appeal filed against the order of rejection of claim petition unnumbered E.A.No.__ of 2013, would not be considered to be abnoxious in law and that hence the challenge made to the numbering of the appeal in C.R.P.No.130/2014 should be rejected. He has contended further that since the appellate court had to consider the propriety of rejection of the claim petition in the appeal, the appellate court, on proper exercise of its discretion, granted stay of further proceedings in E.P.No.199/2013; that hence both the revisions have to be dismissed; that the revision petitioner, without raising his objections by filing a counter and seeking necessary orders in the stay petition, has come forward with the CRP No.129/2013 against the ad-interim stay order; that when the stay petition is still pending before the lower appellate court, the revisions could not be maintained in this court and that hence both the revisions are liable to be dismissed. This court is not in a position to countenance the above said argument advanced on behalf of the first respondent herein/obstructor.
18. In the foregoing discussions, this court has pointed out that the first respondent herein/obstructor and the second respondent herein/judgment-debtor(plaintiff), colluded together, created a Rent Deed after the disposal of the SLP and brought-forth the claim petition in unnumbered E.A.No.__ of 2013 in E.P.No.199/2013 only as an abuse of process of court. If the execution proceedings are allowed to be prolonged by preferring an appeal against the order of rejection of such claim petition, then the same will amount to this court closing its eyes to the patent abuse of process of court. The power of superintendence on the subordinate courts has been conferred on the High Court by the framers of the Constitution in order to keep the subordinate courts within the limits of their powers and also to ensure that the courts subordinate to the High Courts do not entertain proceedings in abuse of process of court. If such power is not exercised by this court to strike off the appeal preferred as an abuse of process of court, then the unethical steps taken by the judgment-debtor by creating successive encumbrance or making successive transfers and setting up successive transferees as obstructors will succeed in preventing the decree-holder from enjoying the fruits of the decree for ever and the same will prove to be a mockery of justice. Such mockery of justice should not be allowed to happen and the case on hand is a fit one, wherein this court has to exercise its power of superintendence under Article 227 of the Constitution of India to strike off the appeal in A.S.No.74/2013 on the file Principal District Judge, Cuddalore.
In the result, C.R.P.No.129/2014 is allowed. The docket order dated 21.12.2013 made in I.A.No.258/2013 in A.S.No.74/2013 on the file of the Principal District Judge, Cuddalore, is set aside. I.A.No.258/2013 shall stand dismissed. C.R.P.No.130/2014 is allowed. The order taking A.S.No.74/2013 on the file of the Principal District Judge, Cuddalore is set aside. The Appeal Memorandum in A.S.No.74/2013 on the file of the Principal District Judge, Cuddalore is struck off. The executing court shall be at liberty and shall be bound to proceed with the execution of the decree passed in the counter claim made in O.S.No.2/2005. Consequently, the connected miscellaneous petition is closed. However, there shall be no order as to cost in both the civil revision petitions.
18.06.2014 Index : Yes Internet : Yes asr/-
To The Principal District Judge, Cuddalore Note to office:
Issue order copy on 20.06.2014 P.R.SHIVAKUMAR, J.
asr C.R.P.(NPD) Nos.129 and 130 of 2014 and M.P.Nos.1 of 2014 Dated : 18.06.2014