Madras High Court
Chellan @ Velayudhan vs Sasidharan on 8 November, 2018
Author: N.Seshasayee
Bench: N.Seshasayee
CRP(MD)Nos.1120 and 92 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 28.01.2022
Pronounced on: 31.01.2022
CORAM: JUSTICE N.SESHASAYEE
C.R.P(MD) No.92(PD) and CRP(MD) No.1120 of 2019
and CMP(MD) Nos.6127, 6164 & 7086 of 2019
CRP(MD) No.92(PD) of 2019 :
Chellan @ Velayudhan : Petitioner/Appellant / Petitioner /
2nd Respondent / 2nd Defendant
Vs.
1.Sasidharan
2.Murugappan :Respondents/Respondents/Respondent
s
Petitioner, 1st Respondent/
Plaintiff, 1st Defendant
CRP(MD) No.1120 of 2019 :
Sasidharan : Petitioner/1st Respondent / Petitioner
Plaintiff
Vs.
1.Chellan @ Velayudhan
2.Murugappan :Respondents /2nd Respdt, Petitioner/
Respondents / Defendants
Prayer in CRP(MD) No.92(PD) of 2019 : Civil Revision Petition field
under Article 227 of the Constitution of India to direct the Subordinate
Judge's Court, Nagercoil to number the appeal in CMA.SR.No.1000513 of
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CRP(MD)Nos.1120 and 92 of 2019
2018 which was filed against the fair and decretal order dated 08.11.2018
passed in E.A.No.107 of 2018 in E.P.No.58 of 2016 in O.S.No.293 of 1983
on the file of the Principal District Munsif, Kuzhithurai, and take the appeal
on file.
Prayer in CRP(MD) No.1120 of 2019 : Civil Revision Petition field under
Section 115 of C.P.C., to set aside the order dated 08.11.2018 passed in
E.A.No.107 of 2018 in E.P.No.58 of 2016 in O.S.No.293 of 1983 on the file
of the Principal District Munsif, Kuzhithurai, and allow the present Civil
Revision Petition.
CRP(MD) No.92 of 2019(PD) :
For Petitioner
: Mr.Prabhu Rajadurai
for Mr.R.Maheswaran
For Respondents : Ms.J.Anandhavalli [R1]
Mr.B.Christopher [R2]
CRP(MD) No.1120 of 2019 :
For Petitioner : Ms.J.Anandhavalli
For Respondents : Mr.Prabhu Rajadurai
for Mr.R.Maheswaran [R1]
Mr.B.Christopher [R2]
COMMON ORDER
1.1 These revisions are filed against an Order passed in E.A.107/2018 in E.P. 58/2016 in O.S.No.293 of 1983 on the file of Principal District Munsiff Court, Kuzhithurai. The E.P. is filed by the decree holder pursuant to the 2/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 final decree passed in a suit for redemption of an otti/ possessory mortgage for delivery of the mortgaged-property. The petitioner in E.A.107/2018 is the second defendant in the suit (henceforth would be referred to as JD), and he had filed it under Sec.47 CPC for holding that the redemption-decree passed in the suit was inexecutable as the suit property/mortgaged property was not properly described.
1.2 The subject matter of the suit as well as the E.P. is a plot of 22 cents with a residential building in Sy.No:522/11 Kaliyal Village, Vilavancode Taluk, Kanyakumari District. This property is described as one bounded on the north by Nanu Panickar’s property, on the south by Muthaiyyan Nadar’s property, on the west by a water body, and on the east by a road.
2. The contention of the petitioner in E.A.107/2018 is that:
A block of 42 cents was originally owned by a certain Velayudhan Nadar, that he sold northern 10 cents to one Muthaiyyan Nadar, and then sold 22 cents that lies to the immediate north of the property sold to Muthaiyyan to Sami Pillai. The decree holder claims under this Sami Pillai. To the further north of this 22 cents of Sami Pillai lies the balance 10 cents (that which remains out of 42 cents after 3/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 sale of 32 cents) of Velayuthan Nadar, the original owner. While so, on 17-11-1982, this petitioner’s wife Jesintha Mary had purchased the northern most 10 cents left from Velayuthan Nadar. According to him, the northern boundary of the suit property ought to be the 10 cents purchased by his wife, and not Nanu Panickar’s property.
3. The core contention of the decree holder is that there is no such 10 cents plot as is being claimed by the petitioner is available on lie, and this claim has already been rejected by the Courts in the trial stage.
4. On 08-11-2018, the Execution Court has passed an Order allowing the petition, but still directed that the a property measuring 22 cents that lies to the west and north of Muthaiyyan’s property be delivered and that a Commissioner be appointed to identify this plot to be delivered.
5. The above said order of the Execution Court has given raise to these two revision petitions:
a) The JD before the Execution Court had preferred CMA before the Sub Court, Kuzhithurai, challenging the order directing delivery of 4/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 the property but it returned it as not maintainable. Therefore, the applicant approached this Court in CRP(MD)92/2019 under Article 227 of the Constitution seeking a direction to the Sub Court, Kuzhithurai to number the appeal.
b) Challenging that portion of the same order as relating to appointment of Commissioner, the decree holder has filed CRP(MD)1120/2019 (though it may appear that the entire order of the execution court in E.A.107/2018 is under challenge).
6. The JD has been unrelenting in his pursuit, not just at the stage of E.P., but right from the time when the suit for redemption was laid. Material facts that lead up to the present CRP, which incidentally provide the right back drop may now be stated:
The suit property is described as a plot measuring 22 cents with a residential building bearing No:23/10B of Kaliyal Village. This property admittedly belonged to a certain Sami Pillai. In 1973, he executed an Otti/possessory mortgage deed in favour one Lakshmi Pillai and put the mortgagee in possession. Thereafter, in 1980, the mortgagee had made over the mortgage to one Murugappan. Murugappan had inducted the JD into possession based on some 5/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 agreement.
Meanwhile, sometime in 1982, Sami Pillai, the original mortgagor, had sold his right to one Sasidharan, the Decree holder. Now three suits came to be filed. The first was by the decree-holder and he instituted O.S.293/1983 for redemption of mortgage against the mortgagee of the property Murugappan, and the JD, who, as was indicated earlier, was put in possession of the property by Murugappan. The second suit was O.S.272/1986, and this was instituted by mortgagee Murugappan against the JD for recovery of possession. The third suit was O.S.477/1991 and it was laid by JD against the mortgagee Murugappan for a declaration that the mortgage has lapsed.
All the three suits came to be tried jointly. The trial Court by a common judgement dated 12-03-1992, decreed the redemption suit in O.S.293/1983 and also the suit laid by Murugappan in O.S. 272/1986, but dismissed the suit filed by the JD. JD then would futilely challenge these decrees respectively in A.S.52/1992, A.S. 31/1992 and A.S.67/1992 before the Sub Court, Kuzhithurai, and all the first appeals came to be dismissed on 29-03-1994. Further second appeals preferred by the JD against the first appellate 6/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 decrees were also dismissed, and this includes the decree in S.A. 1247/1994, dated 02-12-2008.
Meanwhile, the decree- holder had deposited the mortgage money as directed in the preliminary decree, and on 10-02-2014, a final decree too came to be passed. Thereafter, the decree holder laid E.P.No.58 of 2016 for delivery of the mortgaged property. It is in this E.P., the JD had filed E.A.107 of 2018 under Sec.47 CPC challenging the executablity of the decree as the property required to be delivered cannot be identified. And the order passed therein has already been stated in paragraph 4 above.
7. Ms.J.Anandhavalli, learned counsel for the decree holder/revision petitioner in CRP(MD) No.1120 of 2019 has made the following contentions :
(a) So far as the contention of the JD, his wife acquired 10 cents is concerned, she herself laid O.S.No.328 of 1997 against the decree holder, and this came to be dismissed on 25.04.2003. There were atleast four appeals and ultimately, the entire matter reached this Court and this Court confirmed the decree of the trial Court, and the wife of the judgment debtor was non-suited.
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(b) The learned counsel submitted that this aspect has been appreciated by the Execution Court as well. Coming to E.A.107/2018, filed under Section 47 C.P.C. is concerned, it needs to be underscored that the delivery of the property had already been ordered, and this was challenged by the judgment debtor in CRP(MD) No.1187 of 2017, and that came to be dismissed on 02.08.2017. This order having become final, cannot be re-opened or re-visited in the guise of invoking Sec.47 CPC
(c) Section 47 of C.P.C., applies only for considering any question that relates to execution, discharge or satisfaction of the decree. Identifying a piece of land does not fall within the ambit of Section 47 C.P.C., Indeed the contention now taken had been taken as a defence by the judgment debtor in his written statement to the suit, and that even during the trial stage, the Court appointed a Commissioner, his report came to be marked as Ext.C-1 to Ext.C-4. Ext.C-4 plan clearly demarcates the 22 cents to be delivered in DEFGHIC. Since it is only a mortgage-decree, the said Commissioner's report was not attached to the decree, and this cannot be taken advantage by the judgment debtor. In other words, identification of the mortgaged property had already been concluded even during the trial stage of the suit, and it cannot be 8/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 agitated again now.
The learned Counsel would argue that when once identification of the property to be delivered is complete even before the trial Court as could be seen from Ext.C-4, there is absolutely no need for appointing a Commissioner to identify a plot which has already been identified and accepted by the Court in the original side.
8. The critical contention of Mr.G.Prabhu Rajadurai, learned counsel for the JD is that in the guise of taking delivery of 22 cents, the decree holder is attempting to take possession of 32 cents of property which included the property which his wife Jesintha has purchased from the original owner Velayuthan Nadar. And this is not a resolvable ambiguity since it is created by the boundary description of the property in terms of the decree. This has rendered the decree inexecutable.
Discussion and Decision :
9.1 The facts leading upto the filing of E.P.No.58 of 2016 for delivery of the property have not been disputed, and indeed cannot be disputed. The only point which the judgment debtor canvasses is that in O.S.No.293 of 1983 is that the property originally had an extent of 42 cents, and that after sale of 10 9/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 cents to Muthaiya Nadar, and another 22 cents to the vendor of the decree holder, still there remains another 10 cents, which his wife has purchased. And this property of 22 cents purchased by the decree holder must have to be demarcated from the 10 cents belonging to his wife Jesintha Mary. But the typed set of papers filed by the decree holder shows that Jesintha Mary had filed O.S.No.328 of 1997 raising the same contention, but it was found in the case that Velayuthan Nadar had right only over 32 cents and not 42 cents as alleged, and hence there was no property representing 10 cents that he could have conveyed to Jesintha. This decree has become final and hence this issue cannot be revisited in the execution petition, more so, after delivery has been ordered by the Execution Court even in the year 2017. 9.2 So far as the delivery of the property is concerned, it has already been identified Vide Ext.C4 during trial stage. All that is now required to be done is to deliver the plot falling within DEFGHIC in Ext.C4. The decree is perfectly executable, and hence, there is no need for appointing a Commissioner for identifying the plot to be delivered. Ext.C4 is directed to be appended to the delivery list.
10.1 In conclusion, CRP(MD) No.1120 of 2019 is allowed with costs and the 10/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 order dated 08.11.2018 passed in E.A.No.107 of 2018 in E.P.No.58 of 2016 in O.S.No.293 of 1983 on the file of the Principal District Munsif, Kuzhithurai, is hereby set aside. Consequently, connected miscellaneous petitions are closed.
10.2 Turning to CRP(MD) No.92 of 2019 is concerned, it is a sheer abuse of judicial process and this cannot be tolerated and dismissed with costs. It has to be said that given the propensity of the JD to delay and defeat the execution of the decree passed, no further application shall be entertained by the Execution Court which may intervene to obstruct the the delivery of the 22 cents plot to the decree holder.
31.01.2022 Index : Yes / No ds/CM 11/12 https://www.mhc.tn.gov.in/judis CRP(MD)Nos.1120 and 92 of 2019 N.SESHASAYEE.J., CM Pre-delivery order in C.R.P(MD) No.92(PD) and CRP(MD) No.1120 of 2019 31.01.2022 12/12 https://www.mhc.tn.gov.in/judis