Madras High Court
Jubedabai And Anr. vs Lakshmi Ammal And Ors. on 7 January, 1992
Equivalent citations: (1992)1MLJ479
ORDER Srinivasan, J.
1. The properties involved in these proceedings belonged to the family of one Narayanasami Pillai. Respondents 1 and 2 herein are the heirs of Venkatesan Pillai, brother of Narayanasami Pillai. Venkatesan Pillai, filed a suit for partition which was numbered as Affair No. 431 of 1962 against Narayanasami. A preliminary decree was passed on 28.4.1967. Narayanasami Pillai died on 20.10.1967. But, he had executed a will and registered it on 11.3.1966 bequeathing the property to one Balaraman, his grandson. Balaraman was brought on record as the legal representative of Narayanasami Pillai in the final decree proceedings. A final decree was passed on 31.3.1977 allotting the properties now in dispute to Venkatesan's branch. Venkatesan having died in the meanwhile, respondents 1 and 2 herein were brought on record as his legal representatives. Thus, in the final decree, the properties in question have been allotted to respondents 1 and 2.
2. In execution of the decree, respondents 1 and 2 filed E.P.No.141 of 1984 for delivery of possession. It was resisted by the appellants herein and one Kuppusamy Pillai. E.A. No. 433 of 1985 was filed for removal of obstruction. On 3.11.1988, E.ANo.433 of 1985 was dismissed. The court observed that the obstructors did not appear before court and prove their claim. But, the petition was dismissed as the petitioners' counsel reported no oral evidence. I am unable to understand the reasoning of the learned Principal Subordinate Judge, Pondicherry, in dismissing E.ANo.433 Of 1985 on 3.11.1988. But it is clear that there was no adjudication of the claims made by the parties by the court at that time. It was also mentioned in the order that the third obstructor who is the second appellant herein had filed O.S. No. 1395 of 1987 on the file of the Principal District Munsif, Pondicherry.
3. The main execution petition was dismissed on 10.4.1989. The second appellant who had filed O.S. No. 1395 of 1987 on the file of the District Munsif, Pondicherry, for declaration of his title and a consequential injunction obtained an order of interim injunction. Respondents 1 and 2 would appear to have filed a petition for vacating the injunction. It is stated that the said proceeding is still pending.
4. Respondents 1 and 2 filed E.P. No. 169 of 1990 for delivery of possession. They filed E.A. No. 560 of 1991 for removal of obstruction caused by the appellants herein. The appellants filed a counter statement contending that the execution petition and the application for removal of obstruction were not maintainable. In the counter statement, reference is made not only to O.S. No. 1395 of 1987 filed by the second appellant which has since been transferred to the file of the Subordinate Judge and numbered as O.S. No. 172 of 1990, but also to another suit O.S. No. 1171 of 1988 filed by the legal representatives of Kuppusamy Pillai in the Court of Principal District Munsif, Pondicherry. The appellants made reference to the improvements said to have been made by them on the property. In short, the claim of the appellants was that respondents 1 and 2 were not entitled to take delivery of possession as against them. The Additional Subordinate Judge has allowed the application for removal of obtruction by a short order. Aggrieved by the same, the appellants have preferred this appeal.
5. No doubt the grievance of the appellants that the order of the Additional Subordinate Judge does not consider the merits of the claim put forward by them is justified. But, in fact, there are no merits in many of the contentions put forward by the appellants. It is better in this case to separate the claims of the two appellants and deal with them independently.
6. In so far as the first appellant is concerned, she claims to have purchased one item of property from the heirs of Kuppusamy Pillai on 10.7.1990 Kuppusamy Pillai had, in turn, purchased it from Balaraman who was the legatee under Narayanasami Pillai's will. I have already referred to the fact that a final decree in the suit for partition was passed against Balaraman, the legatee of Narayanasami Pillai. Thus, Balaraman had no right whatever to convey the said property to anybody. Consequently, the purchase by Kuppusamy Pillai and the purchase by the first appellant from the heirs of Kuppusamy Pillai had no effect in law to convey the property to the first appellant. The purchase made by Kuppusamy Pillai as well as the purchase by the first appellant were during the pendency of the partition suit and they are clearly hit by the doctrine of lis pendens. Thus, as against the decree-holders/respondents 1 and 2, the first appellant cannot make any claim whatever with reference to the property in question. Therefore, the order of the court below directing removal of obstruction caused by the first appellant is correct on the facts of the case and it has to be upheld.
7. It is also stated that respondents 1 and 2 have taken possession of the said item pursuant to the order of the Court below. The appeal at the instance of the first appellant is, therefore, dismissed.
8. As regards the second appellant, she claims to have purchased one item from Balaraman directly on 11.7.1979. Whatever I have said above with regard to the purchase made by Kuppusamy Pillai and the purchase by the first appellant would undoubtedly apply to the purchase made by the second appellant. Her transaction is also affected by the doctrine of lis pendens. She cannot resist the execution of the decree in favour of respondents 1 and 2. It should be mentioned now that while according to learned Counsel for the appellants the second appellant purchased the entirety of the second item, learned Counsel for respondents 1 and 2 contends that the second appellant purchased only a garage which is a portion of item No. 2. Whatever might have been purchased by the second appellant, that purchase was subject only to the decree in the partition suit. Hence, the second appellant's claim should fail.
9. However, there is a distinguishing factor. The second appellant has filed a suit for declaration of the title and consequential injunction in O.S. No. 1395 of 1987 on the file of the District Munsif, Pondicherry, which is now pending as O.S. No. 172 of 1990, on the file of the Sub Court, Pondicherry. As there is an order of injunction in favour of the second appellant restraining respondents 1 and 2 from interfering with her possession, respondents 1 and 2 cannot execute the decree and recover actual possession so long as the injunction is in force. It is certainly open to respondents to get the order of injunction vacated and proceed to execute the decree. Unfortunately, the learned Subordinate Judge has not taken into consideration the order of injunction in O.S. No. 172 of 1990 which is said to be in force.
10. In the circumstances, the order directing removal of obstruction caused by the second appellant has to be confirmed; but subject to a direction that respondents 1 and 2 cannot execute the decree and recover possession till the order of injunction made in O.S. No. 172 of 1990 is in force.
11. One of the contentions urged by learned Counsel for the appellants is that the present application for removal of obstruction is not maintainable in view of the dismissal of the earlier application E.A. No. 433 of 1985. According to him, once an order is made under Order 21, Rule 98 C.P.C. the remedy of the party aggrieved is to file an appeal as if it is a decree and he cannot come forward with a fresh application for removal of obstruction. There is no substance in this contention. I have already referred to the fact that the order in E. A.No.433 of 1985 did not adjudicate any of the claims made by the parties. Order 21, Rule 98 C.P.C. contemplates an adjudication of the questions referred to in Rule 101, C.P.C. Unless an order amounts to an adjudication, it cannot be treated as a decree and no appeal can be filed against it. In the present case, the order of dismissal is only on the footing that the petitioners' counsel reported no oral evidence. It is not an order in any sense of the terms within the meaning of Order 21, Rule 98, C.P.C. Hence, it has to be treated only as a closure of the application for statistical purposes. By filing the present application for removal of obstruction the decree-holders are only reminding the executing court of its duty to adjudicate the question and decide the matter one way or the other. It is really in effect an application for revival of the earlier application and a continuation of the same in the eye of law. Hence, the present application for removal of obstruction is maintainable.
12. In the result, the civil miscellaneous appeal is dismissed with a direction that respondents 1 and 2 shall not execute the decree as against the second appellant so long as there is an order of injunction made against them in O.S. No. 172 of 1990 in force. There will be no order as to costs.