Madras High Court
Ponmarimuthu @Ponmariappan vs Santhanam on 17 June, 2014
C.R.P.(MD).No.2002 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 01.04.2025
DELIVERED ON: 22.04.2025
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(MD).No.2002 of 2024
and CMP(MD).No.11357 of 2024
Ponmarimuthu @Ponmariappan ...Petitioner/Petitioner
Respondent/Judgment Debtor
Vs
Santhanam ...Respondent/Respondent
Petitioner/Decree Holder
PRAYE: Civil Revision Case is filed under Section 115 of C.P.C to call
for the records relating with the Executable order and Fair Order,
08.07.2024 made in E.A.No.02 of 2024 in E.P.No.28 of 2017 in O.S.No.
124 of 2016 on the file of the Subordinate Judge, Uthamapalayam and set
aside the same.
For Petitioner : Mr.R.Suriyanarayanan
For Respondent :Mr.D.Shanmugaraja Sethupathi
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C.R.P.(MD).No.2002 of 2024
ORDER
The judgment debtor in a suit for specific performance has filed the present civil revision petition challenging the dismissal of his application filed under Section 47 of C.P.C.
(A)Factual Matrix:
2.The respondent herein had filed the above said suit for the relief of specific performance of an agreement of sale dated 17.06.2014 executed by the revision petitioner.
3.The defendant had not filed a written statement and he had remained exparte. The trial Court had decreed the suit on 09.11.2016 after framing the issue, examining the plaintiff as PW1 and after marking exhibits A1 to A9. The defendant had filed I.A.No.27 of 2021 to condone the delay of 1166 days in filing an application to set aside the exparte decree. This application came to be dismissed by the trial Court on
02.08.2022. The defendant had challenging the same before this Court in CRP(MD).No.1852 of 2022 and this Court by an order dated 15.09.2023 had dismissed the said revision petition. The defendant had challenged the order passed in the civil revision petition before the Hon'ble Supreme Court in SLP(Civil) No.2742 of 2024 and the same was also dismissed. 2/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024
4.The decree holder had filed E.P.No.28 of 2017 to get the sale deed executed. In the said execution petition, the defendant had filed E.A.No.2 of 2024 under Section 47 of C.P.C. The said application has been dismissed by the Executing Court on 08.07.2024. Challenging the same, the present civil revision petition has been filed.
(B)Submissions of the counsels on either side:
5.According to the learned counsel for the revision petitioner, the sale agreement was executed only as a security for the loan amount borrowed from the plaintiff. The trial Court has not taken into consideration the extension agreement entered into between the plaintiff and the defendant which would clearly indicate that it was executed only as a security for the said amount.
6.The learned counsel had further contended that in the original sale agreement only the vacant site was shown. In the extension agreement, fraudulently the building was also included. The defendant had inadvertently not noted the same. Therefore, the suit for specific purpose which is based upon a fraudulent sale agreement is invalid in the eye of law. He had further contended that the value of the suit property is more than Rs.10,00,000/-. The Sub Court does not have any pecuniary 3/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 jurisdiction to entertain the said suit. The exparte judgment is not in consonance with Section 2(9) of C.P.C and Order 20 Rule 4 of C.P.C. Therefore, it is invalid in the eye of law.
7.The learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported in 2024 (1) MLJ 563 (Somasundaran Vs.Nataraj and another) and contended that such a judgment is a void one and can be questioned in a proceedings initiated under Section 47 of C.P.C. The learned counsel had further contended that the judgment and decree has been obtained by playing fraud upon the Court by cunningly including the building in the suit schedule property. Any judgement obtained by playing fraud upon the Court is a nullity and the same can be raised at any stage of the suit. The learned counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court reported in 1994 (1) SCC 1 (S.P.Chengalvaraya Naidu Vs. Jagannath) in support of his contention.
8.Per contra, the learned counsel for the respondent had contended that after entering appearance in the execution proceedings, the judgment debtor did not file a counter for three years and thereafter filed I.A.No.27 of 2021 to condone the delay in setting aside the exparte decree. 4/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 The said application was dismissed by the trial Court and confirmed by the Hon'ble Supreme Court in SLP(Civil).No.2742 of 2024 dated 06.02.2024. Only thereafter, the present application has been filed under Section 47 of C.P.C raising the same contentions that were raised in I.A.No.27 of 2021. Therefore, the present application is not maintainable.
9.The learned counsel for the respondent had further contended that building is shown in the sale agreement dated 17.06.2014 which has been marked as Exhibit A1. Only for the said property, the suit for specific performance has been filed. Therefore, the contention of the judgment debtor that the building was cunningly included in the sale agreement and a decree was obtained fraudulently is not legally sustainable.
10.The learned counsel for the respondent had further contended that even though the defendant has not filed his written statement, the trial Court has framed an issue and has considered the oral and documentary evidence submitted on the side of the plaintiff in detail. Only after being satisfied that the plaintiff is ready and willing to perform his part of the contract, the trial Court has proceeded to pass a decree for specific performance. Therefore , the contention of the petitioner that the judgment and decree were not in consonance with Section 2(9) of C.P.C or Order 2 5/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 Rule 5 of C.P.C is not factually correct.
11.The plea relating to the pecuniary jurisdiction, inclusion of building in the sale agreement were available to the defendant at the time of trial. Having not chosen to raise the same, cannot raise the said issue in the execution proceedings and that too in an application filed under Section 47 of C.P.C. The learned counsel had relied upon a judgment of the Hon'ble Supreme Court reported in 2004 (1) SCC 287 (Rafique Bivi (Dead) Vs. Sayed Waliuddil (dead) by LRs) in support of his contention. The learned counsel also relied upon a judgment of the Hon'ble Supreme Court reported in AIR 2017 SC 1577 (M/s.Brakewel Automative Components (I) Pvt.Ltd., Vs. P.R.Selvam Alagappan) to contend that only in limited cases where the decree is by a Court lacking inherent jurisdiction or is a nullity, the provisions of Section 47 of C.P.C. can be invoked. Relying upon the said judgment, the learned counsel for the respondent had further contended that the exercise of power under Section 47 of C.P.C is microscopic and lies in a very narrow inspection hole and the executing Court can allow objection to the executability of the decree if it is found that the same is void abinitio and is a nullity. Hence, he prayed for dismissal of the revision petition.
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12. Heard both sides and perused the material records. (C)Discussion:
13.The revision petitioner/judgment debtor had suffered an exparte decree for specific performance on 09.11.2016. An attempt made on his part to condone the delay in setting aside the exparte decree was not successful and it was confirmed by the Hon'ble Supreme Court on 06.02.2024. Thereafter, the present application has been filed under Section 47 of C.P.C on 21.06.2024.
14.The grounds raised in Section 47 application can be catalogued as follows:
a)The sale agreement was executed only as a security for the loan borrowed from the plaintiff.
b)The value of the property is more than Rs.10,00,000/- and therefore, the Sub Court does not have any pecuniary jurisdiction to entertain the suit.
c)In the original sale agreement only vacant site was sought to be sold, but the building was fraudulently included in the extension agreement.
d)The decree for specific performance has been fraudulently obtained by the plaintiff by incorporating the building in the suit sale agreement without the knowledge of the defendant. When a decree has been fraudulently obtained, 7/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 the same can be questioned at any stage of the proceedings including the proceedings under Section 47 of C.P.C.
e) The trial Court has not properly framed the issue and adjudicated the dispute between the parties. Therefore, the said judgement and decree is not in consonance with under Section 2(9) of C.P.C read with Order 20 Rule 4 and 5 of C.P.C.
15.As far as the first two issues raised by the judgment debtor are concerned, those defences were available to the defendant when the suit was pending. However, he had voluntarily chosen to remain exparte. The reason assigned for the delay in filing an application to set aside the exparte decree have been disbelieved by the trial Court and confirmed by the High Court and the Hon'ble Supreme Court.
16.The Hon'ble Supreme Court in the judgment reported in 2004 (1) SCC 287 (Rafique Bibi (dead) by Lrs. Vs. Sayed Waliuddin (dead) by Lrs.and others) in Paragraph No.10 has held as follows:
“10......Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an 'illegal decree', but that in itself would not amount to branding the decree as 'without jurisdiction' or 'a nullity'. The plea which is sought to be urged in the execution 8/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings...”
17.In view of the judgment of the Hon'ble Supreme Court, it is clear that the first two pleas that were raised in Section 47 application were available to the defendant before passing of the decree. Having not taken the said plea, cannot be permitted to raise the same during execution proceedings. That apart, an objection with regard to the pecuniary jurisdiction has to be raised before settling of issue as contemplated under Section 21(2) of C.P.C. Therefore, this Court is not inclined to accept the said plea raised by the judgment debtor in Section 47 application.
18.The learned counsel for the judgment debtor has further contended that in the original sale agreement only a vacant site was shown and only in the extension agreement, the building was inserted fraudulently. The trial Court without considering the said fraudulent insertion, has granted decree. When the decree has been obtained fraudulently, the same can be challenged even in the execution proceedings.
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19.The suit sale agreement dated 17.06.2014 has been marked as Exhibit A1 in the suit. A perusal of the agreement reveals that the building is also shown in the schedule of properties. The said agreement is a registered sale agreement. The schedule found in the registered sale agreement is replicated as suit schedule property. Therefore, the contention of the judgement debtor that fraudulently the building was inserted in the suit schedule agreement is not factually correct. When there is no fraud in obtaining a decree for specific performance, the judgments relied upon by the revision petitioner are not applicable to the facts and circumstances of the present case.
20.It is further contended that the exparte judgement and decree is not in consonance to Section 2(9) of C.P.C read with Order 20 Rule 5 of C.P.C. The learned counsel for the petitioner had further contended that no issue has been framed relating to the readiness and willingness of the plaintiff as contemplated under Section 16(c) of the Specific Relief Act. A perusal of the plaint reveals that in Paragraph No.6, the plaintiff has pleaded that he was ready and willing to perform his part of the contract. The plaintiff has examined himself as PW1. The plaintiff has marked the suit sale agreement, the extension agreement, suit notice and the reply 10/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 notice sent by the defendant.
21.After considering Exhibits A1 to A9 and deposition of plaintiff, the trial Court has arrived at a finding that the plaintiff has proved the validity of Exhibit A1 agreement and his readiness and willingness to perform his part of the contract. The trial Court has framed the issue, whether the plaintiff is entitled to a decree as prayed for by him and thereafter, has proceeded to consider the entire pleadings, oral evidence and documentary evidence and has arrived at a finding that the plaintiff is entitled to the relief of specific performance.
22.In view of the above said factual situation, it is clear that the plaintiff has pleaded and proved his readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act. The learned counsel for the petitioner has placed strong reliance upon the judgment of the Hon'ble Supreme Court reported in 2024 SCC Online 42 (Asma Lateef and another Vs. Shabbir Ahmad and others) wherein the Hon'ble Supreme Court was pleased to hold that when there is no adjudication/determination so as to conform to the requirements of a decree, then such a decree would inexecutable in the eye of law and it would be open to objection in an application filed under Section 47 of 11/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 C.P.C. In the said case, out of two defendants, one of them had remained exparte. The other defendant who had filed a written statement had raised an objection with regard to the maintainability of the suit. However, the trial Court has proceeded to pass a decree invoking Order 8 Rule 10 of C.P.C. Only in the said factual background, the Hon'ble Supreme Court was pleased to hold that such a decree is void abinitio.
23.However, in the present case, the sole defendant has not filed his written statement, the trial Court has framed the issue, the plaintiff has pleaded and proved his readiness and willingness and the trial Court has passed a decree for specific performance after analysing oral and documentary evidence let in by the plaintiff. Therefore, the judgment of the Hon'ble Supreme Court referred to by the learned counsel for the petitioner is not applicable to the facts of the present case.
24.In view of the above said deliberations, the Executing Court has rightly rejected the application filed under Section 47 of C.P.C. There are no merits in the revision petition. Accordingly, this civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
22.04.2025 12/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 03:28:29 pm ) C.R.P.(MD).No.2002 of 2024 R.VIJAYAKUMAR, J.
After pronouncing order, it is represented by the learned counsel appearing for the petitioner that he has deposited a sum of Rs.3,00,000/- pursuant to the interim order passed by this Court.
2.The learned counsel appearing for the respondent do not have any objection for the petitioner to withdraw the said amount.
3.Accordingly, the petitioner is permitted to withdraw the said amount.
22.04.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
RJR/msa
To
1. The Subordinate Judge, Uthamapalayam
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD).No.2002 of 2024
R.VIJAYAKUMAR, J
msa
Pre-delivery order made in
C.R.P.(MD).No.2002 of 2024
and CMP(MD).No.11357 of 2024
22.04.2025
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