Madras High Court
Kaliammal @ Papathy And Ors. vs T.G. Varadharajan And Ors. on 26 March, 2004
Equivalent citations: 2004(3)CTC266
ORDER K. Gnanaprakasam, J.
1. This Civil Revision Petition is directed against the order dated 22.12.2003 made in E.A.No. 330/03 in E.A.No. 154/2002 in E.P.No. 82/2001 in O.S.No. 473/1993 on the file of Sub Court, Karur. The Revision Petitioners are the defendants 2 to 4 in O.S.No. 473/93 on the file of Sub Court, Karur.
2. The first respondent herein filed the suit for specific performance of the contract of sale pursuant to the agreement dated 11.12.1985 executed by the defendants 1 and 2 for themselves and on behalf of defendants 3 and 4. In the said suit, defendants 1 to 4 have not filed written statement, remained ex parte and defendants 5 and 6 have contested the suit and ultimately, the suit was decreed on 10.10.2000. Pursuant to the same, the plaintiff filed E.P.No. 82/2001 for execution of sale either by defendants or through Court and as the defendants have not come forward to execute the sale, the Court has executed the sale deed on 17.4.2003 and the plaintiff filed E.A.No. 154/02 for taking delivery of the suit property through Court. That in the said application, defendants 2 to 4 have filed an application in E.A.No. 330/03 under Sections 47 and 151, C.P.C to declare the judgment and decree passed in O.S. No. 473/93 is not valid and also questioning the execution of the sale deed in favour of the plaintiff and for other reliefs. The Revision petitioners have also filed an application for stay of the decree.
3. The Executing Court had taken up all the applications together and passed a common order on 22.12.2003 dismissing the application filed by the defendants 2 to 4/Revision petitioners under Sections 47 and 151, C.P.C and allowed the application in E.A. No. 154/03 filed by the plaintiff. Pursuant to the same, the plaintiff/decree-holder had taken delivery of the suit property on 29.1.2004 and the plaintiff also filed the certified copies of the order passed by the Executing Court in E.A.No. 154/2003. The order passed by the Executing Court in E.A.No. 330/03 is under challenge in this Civil Revision Petition.
4. Heard the learned advocate for the Revision Petitioner and the respondent.
5. It is the contention of the learned Advocate for the Revision Petitioners that they are the absolute owners of the suit property and they have filed certain other suits before some other Courts and they were under the impression that all these suits would be tried jointly along with O.S. No. 473/93, but it was not done so. But, however, they have admitted that they have remained ex parte in the suit. They are questioning the decree and judgment on the ground that the sale agreement executed in favour of the plaintiff is not valid and binding upon the minor petitioners 2 and 3 and no permission was obtained from the Court to sell the suit property on behalf of minors also.
6. The first respondent/plaintiff's contention is that the suit agreement executed by the defendants on their behalf and also on behalf of minors is binding upon all the parties and the suit was also filed in time and there was no revocation of the sate agreement as contended by them.
7. Defendants have filed an application to set aside the judgment and decree in I.A. No. 830/02 and as there was a delay in filing the petition, the same was dismissed on 31.10.2002 on the ground that there was no proper reasons to condone the delay. As against the said order, defendants have preferred Civil Revision Petition No. 1559/2002 before this Court, which was dismissed on 28.2.2003. After having embarrassed the defeat, the defendants have filed the present application under Sections 47 and 151, C.P.C.
8. The learned advocate for the Revision Petitioners has advanced the argument before the Executing Court questioning the validity of the decree and the Court below had taken into consideration all the aspects of the case and came to the conclusion that the petition under Sections 47 and 151, C.P.C. is not maintainable and dismissed the same. Consequently, application in E.A.Nos. 330/2003 and 331/2003 were also came to be dismissed. E.A.No. 154/2003 filed by the first respondent/plaintiff was allowed and in pursuant to the same, the plaintiff took delivery of the suit property on 29.1.2004.
9. Respondents 2 and 3 in this petition alone contested the matter. Even in the application filed by the Revision Petitioners in No. E.A.330/03, the respondents 2 and 3 herein have not contested the matter and as a matter of fact, in the written statement filed by them, they themselves have stated that they are unnecessary parties to the suit and they were not aware of the sale deed executed by defendants 1 and 4 in favour of the plaintiff. Respondents 2 and 3 have also not contested the petition filed by the Revision Petitioner in E.A.No. 330/03 before the Executing Court.
10. Now the question is whether the Court below has committed any error in dismissing the application filed by the Revision Petitioners under Sections 47 and 151, C.P.C.
11. The first respondent filed the suit for specific performance pursuant to the agreement of sale executed by the Revision Petitioners herein along with one Vanjiammal, who died pending suit and other defendants contested the suit and ultimately, the trial Court decreed the suit. Pursuant to the same, the plaintiff filed an execution petition for execution of the sale deed and the Revision Petitioners have not come forward to execute the sale deed and the Court itself had executed the sale deed in favour of the plaintiff, pursuant to the same, the plaintiff took delivery of the property.
12. It appears that the Revision Petitioners have also questioned the validity of the judgment and decree by filing an appeal and also they have filed one LA. on the file of the District Court, Karur and the said I.A. was dismissed on 2.2.04 and the said order has not been challenged by the Revision Petitioners.
13. The various averments made by the Revision Petitioners to thwart the decree by filing an application to set aside the judgment and decree before the trial Court and also steps taken before the appellate Court to challenge the decree by way of an appeal were all dismissed. The Revision Petitioners have not contended the same and have also filed application under Section 47, C.P.C further to prevent the plaintiff from executing the decree and reap the fruits of the decree. The Executing Court had taken note of all the aspects of the case and came to the conclusion that the petition filed by the Revision Petitioner under Sections 47 and 151, C.P.C is not maintainable.
14. Learned advocate for the Revision Petitioners has submitted the very same argument which was submitted before the Executing Court stating that the defendants 3 and 4 were minors at the time of execution of agreement and therefore, the agreement executed by other defendants on their own behalf and also on behalf of minors, is not binding on the minors. Though it has been stated so, it is not the contention of the Revision Petitioners that the suit property is self acquired property of the minors or the properties standing in the name of minors. In the absence of such pleadings, the defence raised on behalf of the minors, has got to be rejected. Only when it is made out that the property is the property of the minors, the question of getting permission from the Court for selling the property would arise and in the absence of the same, the arguments advanced on behalf of the revision petitioners should be rejected.
15. The Revision Petitioners have further contended that the plaintiff had obtained an ex parte decree and on the strength of the same, they have filed an Execution petition to take delivery of the property. This story of the Revision Petitioner was putforth, not only before this Court but also before the Executing Court and also before the Trial Court. The Revision Petitioners were not at all diligent enough in defending the matter and it is nothing but an act of the Revision Petitioners, to protract the proceedings as far as possible and with a view to grab the property. Having agreed to sell the same and also failed to execute the sale deed in favour of the plaintiff, which necessitated the plaintiff to file a suit and obtained a decree. In fact, the plaintiff had taken possession of the suit property by due process of the Court. As such nothing more survives for the consideration of this Court.
16. In the light of the above, I see no valid ground to interfere with the order passed by the Court below. The Civil Revision Petition is dismissed and the order passed by the Court below is confirmed.