Dismissed

N.Santhamani v. S.Ramakrishnan

Madras HC27 Aug 2020CRP/1514/2020

Case brief

AI extract

What is this about?

This order dismisses a Civil Revision Petition challenging the dismissal of a Section 47 execution application. The court held the trial court correctly found the f subsequent sale deed was not bonafide, collusive, and barred by Rule 102 due to pending litigation, directing the trial court to expedite the pending cancellation suit.

What did the court decide?

Civil Revision Petition dismissed; trial court directed to dispose of pending suit in O.S. No. 1161 of 2010 expeditiously.

N.Santhamani Vs S.Ramakrishnan — Specific Performance | Madras HC (2020)

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CRP (PD) No.1514 of 2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.08.2020

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C O R A M

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THE HONOURABLE MR.JUSTICE M. GOVINDARAJ

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C.R.P (PD) No.1514 of 2020
and C.M.P.No.8909 of 2020
N.Santhamani ... Petitioner
Vs.
1. S.Ramakrishnan
2. R.Radha ... Respondents

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PRAYER: Civil Revision Petition is filed under Section 115 of the Code of

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Civil Procedure to set aside the fair and decreetal order dated 03.02.2020 made in E.A.No.383 of 2011 in E.P.No.88 of 2009 in O.S.No.814 of 2003 on the file of the II Additional Subordinate Judge, Coimbatore.

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For Petitioner : Mr.N.Manoharan

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O R D E R

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The present Civil Revision Petition is directed against the

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dismissal of the application filed by the third party under Section 47 read with

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Order XXI Rule 58 of Civil Procedure Code.

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http://www.judis.nic.in

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CRP (PD) No.1514 of 2020

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Originally, the property belonged to the husband of the petitioner and he had sold it in favour of the 2^nd respondent-Judgment Debtor on 22.08.1997. The 2^nd respondent entered into a sale agreement with the 1^st respondent-Decree Holder on 24.12.1998. The 2^nd respondent failed to perform her part of contract and hence, the 1^st respondent filed a suit in O.S.No.814 of 2003 for specific performance and the same was decreed on 15.03.2005. Thereafter, on 25.10.2006, the petitioner's husband obtained a Power of Attorney from the the Judgment Debtor and got the Sale Deed executed in her favour on 08.02.2007.

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While the matter stood thus, on 27.11.2008, the Sale Deed was

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executed in favour of the 1^st respondent through Court. The 1^st respondentDecree Holder filed an Execution Petition for possession vide E.P.No.88 of 2009, in which, the petitioner filed E.A.No.486 of 2009 under Order XXI Rule 97 of C.P.C. However, the said E.A.No.486 of 2009 was dismissed for default on 07.04.2011 and it is stated that they have filed an application for restoring the same and it is still pending. In the meanwhile, the petitioner has also filed a

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http://www.judis.nic.in

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CRP (PD) No.1514 of 2020

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suit in O.S.No.1161 of 2010 before the same Court for cancellation of the sale deed dated 27.11.2008 and the same is also pending. Thereafter, she filed an application under Order XXI Rule 58 of C.P.C. read with Section 47 in E.A.No.383 of 2011. The trial Court has considered the maintainability of the petition under Rule 58 of Order XXI & Section 47 C.P.C., and held that it is not maintainable. Further, it is held that transfer made after institution of the suit and after the decree passed in the suit for specific performance. The purchase is not bonafide and the pendente lite transfer is hit by Order XXI Rule 102 of C.P.C. It is also observed that the filing of the suit in O.S.No.1161 of 2010 and the present petition are collusive attempts of the petitioner and the

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2^nd respondent to protract the proceedings and ultimately dismissed the petition.

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Admittedly, there was sale in the year 1997 and an agreement

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for sale in the year 1998. The 1^st respondent filed a suit for specific performance and the same was also decreed on 15.03.2005. Thereafter, the 2^nd respondent executed a Power of Attorney on 25.10.2006 and sale in favour of the petitioner on 08.02.2007. In other words, the petitioner having agreed to get

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the property reconveyed on discharging the debt, had kept quiet till the decree was passed and hastily got the sale deed after passing of decree. When an execution application was filed for possession, the petitioner has filed an

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http://www.judis.nic.in

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CRP (PD) No.1514 of 2020

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application under Order XXI Rule 97 C.P.C., but realised that it is not maintainable in view of Rule 101 Order XXI C.P.C., left it dismissed for default on 07.04.2011. She has filed a suit for cancellation of the sale deed, but had not pursued with the same. It is pending for the past 10 years before the same Court. While the matter stood thus, attempt to file an execution application under Section 47 read with Order XXI Rule 58 C.P.C., is not maintainable as it is barred in view of the fact that the property has already been sold. Therefore, the hasty conveyance after suffering a decree for specific performance and purchase bereft of details as to discharge of debt and verification of title, as rightly held by the trial Court, is not bonafide and the petition is not maintainable.

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I do not find any infirmity in the order dated 03.02.2020 in

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E.A.No.383 of 2011 in E.P.No.88 of 2009 in O.S.No.814 of 2003 passed by the

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II Additional Subordinate Judge, Coimbatore. It is open to the petitioner to

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workout her remedy in O.S.No.1161 of 2010 which is pending on the same Court for cancellation of Sale Deed. Hence, the Civil Revision Petition is dismissed.

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http://www.judis.nic.in

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CRP (PD) No.1514 of 2020

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The learned counsel for the petitioner would request that a direction may be given to the trial Court to dispose of the suit in O.S.No.1161 of 2010 as expeditiously as possible. Accordingly, the II Additional Subordinate Judge, Coimbatore, is directed to dispose of the suit in O.S.No.1161 of 2010 as expeditiously as possible. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

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27.08.2020
asi
To

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The II Additional Subordinate Judge, Coimbatore.

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http://www.judis.nic.in

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CRP (PD) No.1514 of 2020

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M.GOVINDARAJ, J.

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asi

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C.R.P (PD) No.1514 of 2020
and C.M.P.No.8909 of 2020

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27.08.2020

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http://www.judis.nic.in

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N.Santhamani v. S.Ramakrishnan

Case brief

What is this about?

What did the court decide?

N.Santhamani v. S.Ramakrishnan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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