Dismissed

Mrs. N. Leela v. Mrs. Palaniammal (Died)

Madras HC17 Sept 2013CRP/1826/2013

Case brief

AI extract

What is this about?

The High Court dismissed a Civil Revision Petition challenging an execution order. The petitioners argued the decree was unexecutable because the decreed land area did not match the available land. The court held that objections regarding property description must be raised earlier and executing courts cannot go behind the decree or act as appellate courts.

What did the court decide?

Civil Revision Petition dismissed; petitioners directed to vacate and hand over possession within one month.

Mrs. N. Leela Vs Mrs. Palaniammal (Died) — Execution and Attachment | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 17-09-2013

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CORAM :

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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C.R.P (PD).No.1826 of 2013

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N.Leela

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R.Usha

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R.Uma Vishnu Moorthy

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Anitha

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........... Petitioners

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vs.

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Palaniammal (Died)

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K.Radhakrishnan

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K.Ananthakrishnan

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K.Kanagarathinam

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Usha @ Rukmani

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.......... Respondents

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Civil Revision Petition filed under Article 227 of the Constitution of India, against the Judgment and Decree, dated 22.07.2011 made in A.S.No.9 of 2011 on the file of the Principal Subordinate Court, Coimbatore, confirming the fair and final order, dated 22.02.2011 made in E.A.No.40 of 2011 in E.P.No.307 of 2008 on the file of the I Additional District Munsif, Coimbatore.

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For Petitioners : Mr.K.Rajasekaran For Respondents : R1 – Died

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Mr.N.Anand Venkatesh for R2 to R5

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ORDER

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Heard both the learned counsel appearing for the petitioners as well as the respondents.

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This Civil Revision has been preferred under Article 227 of the Constitution of India, against the Judgment and Decree, dated 22.07.2011 made in A.S.No.9 of 2011 on the file of the Principal Subordinate Court, Coimbatore, confirming the fair and final order, dated 22.02.2011 made in E.A.No.40 of 2011 in E.P.No.307 of 2008 on the file of the I Additional District Munsif, Coimbatore.

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It is seen that the suit in O.S.No.898 of 1983 was filed by Palaniammal, who died subsequently. The said suit was dismissed and the plaintiff in the suit preferred an appeal in A.S.No.70 of 1993. The appeal was allowed in favour of the respondents herein, whereby the decree for declaration of title and recovery of possession was ordered and the petitioners / judgment-debtors were directed to hand over the vacant possession of the suit property, within two months from the date of decree. Aggrieved by which, the petitioners / judgment-debtors preferred Second Appeal in S.A.No.1051 of 2006, that was dismissed, confirming the Judgment and Decree passed by the first appellate court.

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It is not in dispute that the Judgment and Decree rendered by the first appellate court reached its finality. Pursuant to the decree, the respondents / decree-holders filed Execution Petition in E.P.No.307 of 2008, in which the petitioners / judgment-debtors filed E.A.No.42 of 2010 under Section 47 of the Code of Civil Procedure, stating that the decree

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granted in favour of the respondents / decree-holders is not executable. In the said Execution Application in E.A.No.40 of 2010, P.W.1 and R.W.1 were examined. After considering the oral and documentary evidence and also the submissions made by both sides, Execution Application in E.A.No.40 of 2010 was dismissed by the Executing Court, by its order, dated 22.01.2011. Aggrieved by which, this Civil Revision has been preferred by the petitioners / judgment-debtors.

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Mr.K.Rajasekaran, learned counsel appearing for the petitioners / judgment-debtors submitted that the decree obtained by the respondents / decree-holders in O.S.No.898 of 2003 is inexecutable, in view of the fact that the property stated as 30 cents with specific boundaries are not available for execution. The petitioners have further stated in the grounds that as per the evidence of the decree-holder, the mother of the witness had only 10 cents and not 30 cents, as per the decree passed by the Court below in favour of the respondents / decree-holders.

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Mr.K.Rajasekaran, learned counsel for the petitioners further submitted that an Advocate-Commissioner was appointed, who inspected the property along with the help of the surveyor, measured the property. However, he measured only 10 cents of the land and not the entire 30 cents and therefore, the decree is not executable.

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Per contra, Mr.N.Anand Venkatesh, learned counsel appearing for the respondents 2 to 5 / decree-holders submitted that the petitioners / judgment-debtors had never disputed the extent of 30 cents and the four boundaries in the suit and in the appeal and therefore, they are not entitled to go beyond the decree. The learned counsel further submitted that according to the revision petitioners, 20 cents were already sold by the respondents / decree-holders and therefore, the AdvocateCommissioner measured only the 10 cents with the help of surveyor and to that effect, Commissioner's Report and sketch were filed and therefore, it cannot be said that the decree is not executable.

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It was argued on the side of the respondents 2 to 5 / decreeholders mainly that the petitioners / judgment-debtors are not entitled to raise a plea, that was already decided by the trial court and the appellate court, which resulted in the decree. Similarly, the petitioners / judgmentdebtors are not entitled to raise a new plea that could have been raised before the decree reached its finality. Though the decree passed in favour of the respondents / decree-holders is for 30 cents and the land available is only for 10 cents, that would not be a defence for the petitioners / judgment-debtors to say that the decree is not executable. The following decisions were relied on by both the learned counsel on the legal aspect to enlighten the Court, on the question of law involved in the Revision:

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Ravinder Kaur v. Ashok Kumar, (2003) 8 SCC 289

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Prathiba Singh v. Shanti Devi Prasad, AIR 2003 SC 643

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Radhi Dei and others v. Lalit Bihari Mohanty, AIR 1991

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Orissa 36

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Annamalai v. Srinivasaraghava, AIR 1938 Madras 293

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Gurudev Singh and another v. Punjab National Bank, Mandi

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Dabwali and others, AIR 1998 Punjab and Haryana 106

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Abdul Waheed Sahib v. A.N.Naina Mohamed and others,

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(1981) 2 MLJ 442

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Chutahru Bhagat v. Hialal Shah, CDJ 1950 Bihar HC 006

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Hira Devi and others v. Harinath Chaurasiya and others,

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AIR 1989 Allahabad 11

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Late Nawab Basheer Jung (Died) by LRs. & others v. M/s.

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M.A.Bari & others, CDJ 2005 APHC 180

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Syed Shafee and another v. S.Asmath Basha anothers,

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(1989) 1 MLJ 193

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Rama Subudhi and others v. Bhagirathi and others, AIR

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1982 Orissa 86 (1)

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In Rama Subudhi and others v. Bhagirathi and others,

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reported in AIR 1982 Orissa 86 (1) , a Division Bench of Orissa High Court has held that under Section 47 of the Code of Civil Procedure, as follows :

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"9...In the present case, the decree-holder

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claims delivery of possession, in respect of a portion of the plot. There is however, nothing to show from which side of the plot he is entitled to take possession. It is difficult to understand why the executing court appointed a commissioner for demarcation of the land when it has not been specified in the decree. It is not open to the executing court to divide the plot and deliver possession of any specific portion. It would be impossible to demarcate and deliver possession of any specific portion unless its identity is known. Mr.P.C.Misra, who appeared for the respondent-decree holder in this court when confronted with the situation could not satisfactorily meet the point."

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In Abdul Waheed Sahib v. A.N.Naina Mohamed and

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others, reported in (1981) 2 MLJ 442 , this Court (S.NATARAJAN, J), has held thus :

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"12...Even otherwise, it can never be said that a Court, while passing a decree, could have also made a pronouncement about the executability of the decree. The question of the enforceability of a decree would arise only at the stage of execution proceedings and not earlier and as such, even as a proposition, it will be a fallacy to say that the Court can render a finding about the executability of the decree even at the time of the passing of the

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decree. The learned District Munsif has then referred to certain observations by the High Court, which really do not threw any light on the facts of the case. Even assuming that the observation of the learned single Judge, that in spite of section 16-A of the Act X of 1969, the civil Court's jurisdiction to render a finding about the status of the parties is not affected, will amount to an adjudication of the rights of the parties, the District Munsif has failed to see that those observations must be eschewed from consideration because no pronouncement on merits by a Court without jurisdiction over a matter can have any legal force..."

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In the aforesaid decision, it has been held that all the points relating to petition filed under Section 47 CPC had already been considered against the appellant in the Second Appeal, hence the same points cannot be raised in the Execution Application before the E.P.Court.

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In Smt.Radhi Dei and others v. Lalit Bihari Mohanty ,

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reported in AIR 1991 Orissa 36 , learned single Judge of Orissa High Court has held as follows :

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"4. The position of law is well settled that ordinarily the executing Court is not entitled to go behind the decree and is not entitled to go behind the decree and is not entitled to consider subsequent events to

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deny the decree-holder the right to execute the decree. But there are certain well recognised exceptions to this rule; one of them is that when the decree is a nullity or the decree-holder has lost the right to execute the decree, on account of a subsequent change in law or some subsequent development then the executing Court can take note of change in the situation and can refuse to execute the decree on that basis."

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13. In Hira Devi and others v. Harinath Chaurasiya and

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others , reported in AIR 1989 Allahabad 11 , relying on the decision of the Supreme Court in Vasudeo Dhanji Bhai v. Raja Bhai Abdul Rahman , reported in AIR 1970 SC 1475 , Allahabad High Court, while dealing with Section 47 of the Civil Procedure Code and Section 16 of Specific Relief Act (47 of 1963) held that where in a suit for specific performance of contract the defendants (judgment-debtors) did not raise any objection in the written statement about the lack of jurisdiction, nor the plea of the suit being barred by S.16 (c) of the Specific Relief Act was taken and the decree became final in all respects at the stage of execution of the said decree, it could not be assumed that the Court had inherent lack of jurisdiction. When the decree had been put in execution it was not open to the judgment-debtors to raise such objections, nor the same could be permitted to be raised by the execution Court. This was not an objection pertaining to the execution, discharge or satisfaction of the

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decree. Execution means carrying into operation of effect of the decree. In other words, the executing Court would have no power within the meaning of S.47 of the Civil P.C., to entertain such objections. At that stage the objections regarding illegality or irregularity in passing the decree or rendering the judgment were not with the authority of the execution Court.

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In Vasudeo Dhanji Bhai v. Raja Bhai Abdul Rahman , reported in AIR 1970 SC 1475 , the Hon'ble Apex Court has ruled thus : "For the purposes of determining whether the Court which passed the decree, had jurisdiction to try the suit, it is not necessary to determine the facts on the decision of which the question depends and the objection does not appear on the face of record, the executing Court cannot enter upon in any way into those facts."

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In Prathiba Singh v. Shanti Devi Prasad , reported in AIR

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2003 SC 643 , while dealing with section 152 and Section 42 of the Code of Civil Procedure, the Hon'ble Supreme Court has held as follows :

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"17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had

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to Section 152 or Section 47 CPC depending on the facts and circumstances of each case — which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 CPC by the court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case, we think it would be more appropriate to invoke Section 47 of the C.P.C."

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In Gurudev Singh and another v. Punjab National Bank , reported in AIR 1998 Punjab and Haryana 106 , the High Court of Punjab and Haryana, relying on Bhavan Vaja v. Solanki Hanuji Khodaji Mansang , reported in AIR 1972 SC 1371 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman , reported in AIR 1970 SC 1475 has held thus :

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"14...A decree which has been passed and has not been assailed in the regular appeals, which were available to the parties against whom the decree was

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passed, such party cannot be permitted to abuse the process of law before the executing Court to alter the decree, which has attained finality in all respects. The parties have a remedy of applying for review in accordance with law. The review of a decree has to be by a Court, which passed the decree and such a jurisdiction would not be available to the Executing Court in execution proceedings..."

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17. In Ravinder Kaur v. Ashok Kumar , reported in (2003) 8 SCC

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289 , the Hon'ble Apex Court has held as follows :

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"22. All these facts apart, we notice that nowhere in the petition the respondent tenants claim to be in possession of any shop other than Shop No. 3 in regard to which they have suffered an eviction order. It is not their case that they are also in possession of some other property in regard to which there is no eviction order but the landlord is trying to take possession in these execution proceedings. We have specifically asked the learned counsel appearing for the respondents that apart from Shop No. 3 belonging to the appellant, are the respondents in possession of any part of the property bearing No. EK 172/2 situated at Chowk Panjeer, Jalandhar. The learned counsel was not able to give any satisfactory reply to our question which would only mean that the respondents are not in possession of any other property other than Shop No. 3 leased out to them in the above

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mentioned property belonging to the appellant. That is also why they prayed for restoration of possession. Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courts of law should be careful enough to see through such diabolical plans of the judgmentdebtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system."

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The impugned order was passed in the Execution Application under Section 47of the Code of Civil Procedure in E.A.No.40 of 2010 in E.P.No.307 of 2008 on the file of the Executing Court. Therefore, in the light of various decisions rendered by the Hon'ble Apex Court and various High Courts referred to above, it has been made crystal clear that the scope of objection by the Judgment-debtor, as contemplated under Section 47 CPC is pertaining to execution, discharge or satisfaction of the decree and not to go behind the decree to question the validity of the decree. It is a settled proposition of law that the Executing Court is not empowered to play the role of an appellate Court or can assume the role of the Revisional Court.

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In Rameshwar Das Gupta v. State of U.P ., reported in AIR

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1997 SC 410 , the Hon'ble Apex Court has ruled thus :

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"It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution."

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It has been further observed by the Hon'ble Apex Court that the Executing Court gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 of the Code of Civil Procedure.

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In the present case, the suit was decreed and that has reached its finality. Pursuant to the decree, the respondent / decree-holder filed Execution Petition under Order 21 Rule 35 of the Code of Civil Procedure, seeking an order against the revision petitioners / judgment-debtors, directing them to deliver vacant possession of the property. As per the decree, the extent of the property is 30 cents in S.No.444/3 of Veerapandi village, Coimbatore District. As per the Commissioner's Report and sketch, the available extent in the said Survey Number and SubDivision is only 10 cents.

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Mr.N.Anand Venkatesh, learned counsel appearing for the respondents 2 to 5 / decree-holders, submitted that the respondents / decree-holders satisfied with the available 10 cents of the land, though the decree is for 30 cents. However, it was argued on behalf of the petitioners / judgment-debtors that the decree is not executable, since

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the available land is less than the land stated in the decree and in the E.P. As discussed earlier, in this order, there is no other land available for the judgment-debtors, even according to them, hence, the objection raised by the petitioners / judgment-debtors is not legally sustainable, as there is no legal grievance for the petitioners / judgment-debtors and there is no error or infirmity in the impugned order.

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The other objections raised by the revision petitioners / judgment-debtors are not legally permissible, since they are not entitled to challenge the decree, which has reached its finality before the E.P.Court. The decision rendered in Ravinder Kaur v. Ashok Kumar (2003) 8 SCC 289 is squarely applicable to the case on hand, whereby the Hon'ble Supreme Court has made it very clear that the judicial forums cannot encourage frivolous and cantankerous litigations, causing delay, as the same would bring down the name of the Judicial system. Hence, the Civil Revision Petition is liable to be dismissed, as an abuse of process of law.

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In the result, this Civil Revision Petition is dismissed and the petitioners / judgment-debtors are directed to vacate and hand over the vacant possession of the property, within one month from the date of receipt of a copy of this order. No order as to costs.

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17-09-2013