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Showing contexts for: THIRUVANNAMALAI in Motilal vs B.K.Babu Sahib on 23 May, 2019Matching Fragments
This second appeal has been filed by the defendants against the judgment and decree passed by the Sub Judge, Thiruvannamalai in A.S.No.29 of 2012 dated 01.04.2013 reversing the order passed by the Principal District Munsif, Thiruvannamalai dated 11.04.2012 made in the un-numbered suit, wherein the plaint has been rejected.
2. The respondents had filed a suit on the file of the Principal District Munsif, Thiruvannamalai to declare that the decree in O.S.No.368 of 2000 on the file of the Principal Sub Judge, Thiruvannamalai dated 05.09.2001 is null and void and in-operative and not binding on them as against the provisions of law; to restrain the defendants, their men, etc by means of permanent injunction from claiming any right under the said impugned decree; to restrain the defendants, their men, agents etc by means of permanent injunction from interfering with the exclusive possession and enjoyment of the plaintiffs 3 and 4 over the suit property. The learned Principal District http://www.judis.nic.in Munsif, Thiruvannamalai by the Order dated 11.04.2012 had rejected the plaint. Aggrieved by the same, the plaintiff's had filed an appeal in A.S.No.29 of 2012 on the file of the Principal Sub-Judge, Thiruvannamalai. The learned Principal Sub-Judge, Thiruvannamalai by the judgment dated 01.04.2013 had allowed the said appeal and set aside the order passed by the Trial Court and directed the plaintiffs to re-present the plaint within 30 days from the date of receipt of copy of the judgment and on such re-presentation, the Trial Court has to take the case on file and dispose of the same in accordance with law. Feeling, aggrieved, the defendants have filed the present second appeal.
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(b) The defendants 1 and 2 realizing that the aforesaid decree will not confer any right on them, they made a request with the first plaintiff to avail loan from the State Bank of India in the name of them. Accordingly, the first plaintiff for the sake of defendants borrowed a sum of Rs.30,00,000/- and for himself Rs.10,00,000/-, at the first instance from the State Bank of Thiruvannamalai by creating equitable mortgage for Rs.40,00,000/- on 05.07.2006. Subsequently, as the defendants requested the first plaintiff to borrow a further sum of Rs.6,00,000/-, the first plaintiff borrowed the said amount on 02.11.2006 by executing another equitable mortgage in favour of the same bank. Thereafter, the first plaintiff also obtained another loan of Rs.10,00,000/- from the same State Bank of India on 08.01.2011 by creating another equitable mortgage. The aforesaid facts also would show that the compromise decree in O.S.No.368 of 2000 dated 05.09.2001 did not come into force. The fact remains so, taking advantage of the aforesaid invalid decree, the defendants claimed right over the northern portion of the suit property. Hence, the first plaintiff had sent a notice to the defendants on 07.04.2010 calling upon them to acknowledge the title of the first plaintiff over the suit property and marked a copy of the said notice to the registering authorities. After http://www.judis.nic.in receipt of the said notice, the defendants had sent reply notice with false averments on 05.05.2010. Hence, the first plaintiff had sent a rejoinder for which the defendants had sent a false reply on 09.07.2010. The first plaintiff was asserting the right of his ownership over the suit property has voluntarily settled the entire suit property to the knowledge of the defendants in favour of his grand daughters (plaintiffs 3 and 4) under a registered settlement deed dated 04.05.2010 and also delivered the possession of the suit property to them. In view of the false claim made by the defendants, the plaintiffs are obliged to file the present suit to declare that the decree passed in O.S.No.368 of 2010 on the file of the Principal Sub Judge, Thiruvannamalai dated 05.09.2001 is null and void and for permanent injunction to restrain the defendants from claiming any right under the said decree.
5. The learned Principal District Munsif, after considering the plaint averments and the documents filed along with the plaint found that the plaintiffs and the defendants in O.S.No.360 of 2000 on the file of the Principal Sub Judge, Thiruvannamalai had filed a joint compromise memo in IA.No.490 of 2001 and the said petition has been allowed and subsequently a compromise final decree was passed http://www.judis.nic.in and in the final decree, northern 1/2 share was alloted to the plaintiffs therein and the southern 1/2 share was alloted to the defendants therein and possession of respective shares also taken by the parties and hence the present plaintiffs are estopped from questioning the validity of the said decree. Accordingly, she rejected the plaint. She further found that the suit is barred by limitation. Aggrieved by the same, the plaintiffs had filed an appeal in A.S.No.29 of 2012 on the file of the Sub-Judge, Thiruvannamalai. The learned Principal Sub Judge had allowed the said appeal and set aside the order passed by the Trial Court and directed the plaintiffs to re-present the plaint within thirty days from the date of receipt of copy of the said judgment and on such re-presentation, the Trial Court has to take the case on file and proceed in accordance with law. Feeling aggrieved, the defendants have filed the present second appeal.
7. Heard Mr.N.Jothi for B.Lenin Balu, the learned counsel for the appellants and Mr.Rajarajan, the learned counsel for the respondents.
8. Substantial Questions of Law 1 to 4:
The learned Counsel for the appellants has submitted that the First Appellate Court erred in reversing the well considered order of the Trial Court. He further submitted that the First Appellate Court failed to consider that both the parties filed a joint compromise petition in I.A.No.490 of 2001 in O.S.No.368 of 2000 requesting the court to pass a compromise final decree in the suit and considering the said http://www.judis.nic.in application, the learned Principal Sub-Judge, Thiruvannamalai had allowed the said application and passed a final decree in O.S.No.368 of 2000 on 05.09.2001 allotting the northern portion of the suit property to the plaintiff therein (defendants herein) and the southern portion to the first defendant therein ( first plaintiff herein) and on the same day, the parties have taken possession of their respective shares and hence the said decree acted upon. He further submitted that it is not the case of the plaintiffs that the said compromise was not valid on account of any fraud, mis-representation or undue influence or coerciveness and hence the said compromise is not lawful. He further submitted that it is not the case of the plaintiff that the said compromise is void or voidable under the Indian Contract Act, 1872. He further submitted that in view of the provisions of Order 23 Rule 3 (A) CPC, no suit shall lie to set aside a decree on the ground that the compromise on which the decree passed is not lawful. He further submitted that the compromise decree was passed on 05.09.2001 and questioning the said decree, the plaintiffs have filed the present suit, in the year 2010 i.e., after nine years and hence the suit is barred by limitation. He further submitted that as per Section 3 of the Limitation Act, it is the duty of the Court whether the suit has been filed within limitation or not and hence the findings of the First Appellate Court that the Trial http://www.judis.nic.in Court should not have decided the question of limitation at the initial state is not proper. He further submitted that Rule 84 of Civil Rules of Practice insists that the list of exhibits filed and witnesses examined shall be annexed to the judgment but in this case, no witnesses examined, no exhibits marked and judgment also not passed and that being so, the question of non compliance of Rule 84 of Civil Rules of Practice does not arise, but the first appellate court misconstrued the said provision and held that the non compliance of the said Rule by the Trial Court is fatal. He further submitted that since the plaintiffs 1 and 2 herein being the defendants in O.S.No.368 of 2000 voluntarily gave consent for passing a compromise decree, they are estopped from questioning the said decree. He further submitted that after nine years, questioning the said compromise decree, the plaintiffs have filed the present suit and the same is clear abuse of process of law and hence the learned District Munsif had rightly rejected the plaint, but the First Appellate Court erred in reversing the well considered order of the learned District Munsif and hence he requests to allow the second appeal and set aside the judgment and decree passed by the First Appellate Court and restore the order passed by the learned District Munsif, Thiruvannamalai.