Madras High Court
K.Sundari vs K.Suseela on 27 July, 2018
Author: M. Sathyanarayanan
Bench: M. Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2018 CORAM THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN Review Application No.84/2017 in SA.No.584/2016 K.Sundari .. Petitioner Versus 1.K.Suseela 2.Kannan .. Respondents Prayer:- Review Petition filed under Order 47 Rule 1 of the Code of Civil Procedure against the judgment in SA.No.584/2016 dated 27.04.2017. For Petitioner : Mrs.K.Sundari Party-in-person ORDER
The appellant in SA.No.584/2016 is the review applicant herein and the present review petition is filed to review the judgment dated 27.04.2017 made in SA.No.584/2016.
2 The appellant/review applicant is the Obstructor and the 2nd respondent in A.No.264/2012 in EP.No.461/1999 in OS.No.183/1991 on the file of the Court of the learned IX Assistant City Civil Judge, Chennai and she is also the wife of the judgment Debtor, viz., Thiru M.Kannan. An obstruction has been caused in respect of the premises bearing Door No.19A, Rajamangalam Main Road, Villivakkam, Chennai-49, which came to be rejected on 20.04.2015 and challenging the same, the appellant/review applicant/Obstructor has filed an appeal in AS.No.144/2015 on the file of the Court of the learned VI Additional City Civil Judge, Chennai and it was dismissed vide judgment and decree dated 26.02.2016 and challenging the legality of the decree, has filed the Second Appeal.
3 This Court, in the impugned judgment dated 27.04.2017 passed in SA.No.584/2016, had exhaustively dealt with the factual and legal aspects and noted that the Auction Purchaser, after getting the Sale Certificate in respect of the property, filed EP.No.461/1999 for delivery of possession and when the Bailiff went to the premises for evicting and delivery of the premises bearing Door No.19, the review applicant/appellant, had obstructed the delivery of the property stating that she is residing in Door No.19A and therefore, the delivery and possession cannot be taken. The Bailiff has noted the said obstruction and submitted his report dated 23.02.2010.
4 Thereafter, the Auction Purchaser filed EA.No.264/2012 under Order 21 Rule 9 CPC for removal of obstruction and the Obstructor/review applicant was put on notice and she made a similar claim and a detailed enquiry was conducted wherein, the Auction Purchaser examined himself as P.W.1 and marked Exs.P.1 to P.17 and the review applicant/appellant/Obstructor examined herself as R.W.1 and on consideration of the same, ordered the petition filed by the Auction Purchaser on 20.04.2015. In the challenge made by the review applicant/Obstructor in AS.No.144/2015, the Lower Appellate Court has noted that the Court Auction was conducted on 10.11.1997 and the sale was effected in favour of the Auction Purchaser on 19.02.1998 and the Sale Certificate was also issued and the application for delivery and possession, was also ordered on 10.09.2001 and the Auction Purchaser took delivery of the property. Thereafter, the Obstructor, once again entered into the possession and in this regard, a complaint was also lodged, based on which, the First Information Report came to be registered and after investigation, has culminated into a charge sheet in CC.No.10344/2001 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai, wherein, the appellant, her husband and one Senthil were convicted for the commission of the offences u/s.448 and 427 IPC and the 4th accused was convicted for the commission of the offences u/s.448, 427 read with 109 IPC. The Lower Appellate Court further noted that there are no records with regard to the Door No.19A and also found that the Obstructor / review applicant has filed OS.No.7845/2009 against the Auction Purchaser for permanent injunction restraining them from interfering with the peaceful possession and it was dismissed for non-prosecution on 12..04.2010 and the Auction Purchaser also filed WP.No.16297/2012 against the Tamil Nadu Electricity Board as well as against the review applicant and her husband and to disconnect the electricity supply given to the said premises and it was ordered as prayed for and subsequently, the said order was recalled. The Lower Appellate Court further found that as per the reply filed by the Assistant Revenue Officer, Corporation of Chennai, marked as Ex.P.12, the Tax Receipts produced by the Obstructor in respect of the property bearing Door.No.19A, is a forged one and she did not produce any document to establish her ownership in respect of the said property. Therefore, dismissed the appeal. This Court, after taking note of the said factual aspect, also found that the Obstructor/review applicant herein had filed OS.No.3688/2013 against the Auction Purchaser, Commissioner, Corporation of Chennai ; and the Chairman, Tamil Nadu Electricity Board, praying for declaration that the property bearing Door No.19A, Rajamangalam Main Road, Villivakkam, Chennai-49, is her absolute and independent property. Thereafter, the Auction Purchaser filed IA.No.9674/2015 praying for rejection of plaint and it was ordered and as a consequence, the plaint was rejected vide judgment and decree dated 09.12.2015.
5 This Court, has also noted in EA.No.264/2012 filed by the Auction Purchaser for removal of the obstruction, the review applicant/Obstructor has examined herself, wherein she has made a categorical admission that after the Bailiff delivered possession, she has once again trespassed upon the said property. This Court, with regard to legal position, found that on each occasion of obstruction or resistance, a cause of action would accrue to the decree holder to make an application for removal of the obstruction or resistance by such person. But, however found that in cases where the superstructure has been put up before institution of the suit, the judgment debtor must be directed to remove the same and appropriate direction can be given for removal of the superstructure.
6 This Court also by placing reliance on the judgment reported in 2011 [1] LW 647 [Munusamy and 4 othres Vs. Vengadachalam and 10 others], held that when an Obstructor objects the delivery of possession by the decree holder, claiming independent right, the Court has to find out whether the Obstructor has not any legal right to possession of the property and if the Court comes to the conclusion that the said person has got every right to be in possession, can pass orders to that effect in the proceedings and cannot go into the legality of the decree passed in favour of the decree holder at the instance of the Obstructor and the Obstructor is under mandate to prove that he or she is having an enforceable right over the property. This Court, on an independent application of mind to the factual aspect and taking into consideration the legal position, has found that no substantial questions of law are raised for consideration and accordingly, dismissed the Second Appeal on 27.04.2017 and taking into consideration, the plea made by the appellant / review applicant to vacate and deliver the vacant and peaceful possession of the remaining portion of the premises, listed the matter for filing an affidavit of undertaking and it was filed and this Court has granted time to vacate and deliver the peaceful and vacant possession of the property and the Second Appeal was listed on 07.06.2017 and on that day, the learned counsel appearing for the appellant/Obstructor/Review Applicant, has submitted that the possession of the premises has been handed over to the Auction Purchaser and after placing the same on record, recorded that no further orders are necessary.
7 The review applicant appearing as Party-in-Person would submit that as against the conviction recorded by the Lower Court, she filed CA.No.124/2006 on the file of the Court of the learned Additional District and Sessions Judge, Fast Track Court No.1, Chennai and it was dismissed and Crl.RC.No.604/2011 filed by her, came to be allowed on 17.04.2012 and as such, it cannot be taken into consideration. The review petitioner/Party-in-Person, has also drawn the attention of this Court to the order dated 10.02.2010 made in Cont.P.No.546/2009 filed by one K.Suseela, wherein an observation has been made ''there appears to be a sub-division of the premises and a new Door No.19A was assigned in favour of Kannan [husband of the review petitioner] which according to him, is a new premises and not concerned with the premises which is the subject matter of writ appeal. 8 Admittedly, the order dated 17.04.2012 made in Crl.RC.No.604/2011 as well as the order dated 10.02.2010 made in Cont.P.No.546/2009, have not been marked as documents and even for the sake of arguments, they have been marked, it would have not M.SATHYANARAYANAN, J., AP made any difference for the reason that the Courts below had recorded the factual findings as to the claim of ownership on the part of the review applicant/obstructor. It is a well settled position of law that under the guise of review, the issue which has already been agitated, cannot be reconsidered as if it is an appeal in disguise. The review applicant/party-in-person, under the guise of review application, wants to reopen the case and put forth the very same submission afresh and the same is impermissible in law.
9 In the considered opinion of the Court, there is no error apparent on the face of the record and no infirmities have been found in the impugned judgment, which is the subject matter of the review application. Accordingly, the review application is dismissed at the admission stage itself. No costs.
27.07.2018 Internet : Yes AP Rev.Appln.No.84/2017