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D. Vijayakumar v. M.A. Sivakumar

Madras HC1 Aug 2025SA/434/2017

Case brief

AI extract

What is this about?

Second Appeal; Madras High Court; S.A.No.434 of 2017; Section 100 CPC; substantial question of law; permanent injunction; monthly rents; tenants; cancellation of sale deed; interlocutory application order survives withdrawal of suit; only pending I.As become infructuous; CRP dismissed as infructuous; Ex.B7; Ex.B8; valid title; D.Vijayakumar v. M.A.Sivakumar; K. Kumaresh Babu J.; 01.08.2025; appeal allowed; no costs; first appellate judgment set aside.

What did the court decide?

Second Appeal allowed with no costs; the judgment and decree dated 20.12.2016 made in A.S.No.136 of 2016 on the file of the XVI Additional City Civil Court, Chennai is set aside. ¶59

D. Vijayakumar Vs M.A. Sivakumar — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Second Appeal allowed with no costs; the judgment and decree dated 20.12.2016 made in A.S.No.136 of 2016 on the file of the XVI Additional City Civil Court, Chennai is set aside.

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Issue for consideration

Whether the sale deed executed in favour of the 1st defendant by the 2nd defendant after the sale is set aside in I.A.No.19007 of 2007 in O.S.No.938 of 2006 on 19.07.2010, without challenging the same, the 2nd defendant has got any right to execute the sale deed in favour of the 1st defendant herein?

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Court's answer

The order passed in the Interlocutory Application (I.A.No.19007 of 2007, dated 19.07.2010) indicates that the 2nd defendant/respondent had lost his right to execute the sale deed.

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Ratio / Principle

The Ex.B8 sale deed executed by the 2nd defendant in favour of the 1st defendant cannot be said to be a valid sale.

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Key takeaways

An interlocutory application already disposed of, determining the right of a party to the suit, does not become infructuous on withdrawal of the suit; only pending interlocutory applications do. The right determined under the I.A. by the order dated 19.07.2010 was not eclipsed by the withdrawal of the suit.ratio¶53
Unless and until the judgment and decree by which the sale deed executed in favour of the 2nd defendant was negated is set aside in the manner known to law, the 2nd defendant cannot be said to have any valid title.ratio¶53

Detailed headnote1 paragraphs

Madras High Court (K. Kumaresh Babu, J.) — S.A.No.434 of 2017 under Section 100 CPC, decided 01.08.2025. The plaintiff-appellant's suit (O.S.No.943 of 2012, XVII Assistant City Civil Court, Chennai) for permanent injunction restraining interference with his collection of monthly rents from tenants was decreed on 04.01.2016; the first appellate Court (A.S.No.136 of 2016, XVI Additional City Civil Court, Chennai, decree 20.12.2016) reversed it, holding the 1st defendant had valid title under the Ex.B8 sale from the 2nd defendant. Substantial question of law framed: whether the 2nd defendant, whose own purchase had been cancelled by the fair and decreetal order dated 19.07.2010 in I.A.No.19007 of 2007 in O.S.No.9381 of 2006 (District Munsif Court, Chennai; Ex.B7), had any right to execute the sale deed in favour of the 1st defendant. Held: an interlocutory application already disposed of, determining a party's right, does not become infructuous on withdrawal of the suit — only pending I.As do; the cancelling order's operation survived, the 2nd defendant's C.R.P.No.2829 of 2010 having been dismissed as infructuous (Ex.B10) after the suit was withdrawn on 06.01.2011, and the I.A. order never having been set aside in the manner known to law. The 2nd defendant therefore had no valid title and the Ex.B8 sale was not a valid sale. The first appellate Court's judgment and decree dated 20.12.2016 was set aside and the Second Appeal allowed, with no costs.

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S.A.No.434 of 2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.08.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE K.KUMARESH BABU

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S.A.No.434 of 2017

D.Vijayakumar

...Appellant

Vs.

1.M.A.Sivakumar 2.K.M.Kulothungan 3.M.Thirunavukkarasu (Died) 4.T.Srinivasan 5.T.Revathy

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[R3 died, RR4 and 5 brought on records as LRs of the deceased R3 vide Court order date 19.02.2025 made in C.M.P.No.10399 of 2022 in S.A.No.434 of 2017]

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...Respondents

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https://www.mhc.tn.gov.in/judis

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S.A.No.434 of 2017

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Second Appeal filed under Section 100 of Civil Procedure Code, to set

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aside the judgment and decree dated 20.12.2016 made in A.S.No.136 of 2016 on the file of the learned XVI Additional City Civil Court, Chennai reversing the judgment and decree dated 04.01.2016 made in O.S.No.943 of 2012 on the file of the XVII Assistant City Civil Court, Chennai.

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For Appellant : Mr.M.Balasubramanian

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For Respondents : No appearance for R1, R2 and R5 R3 – Died R4 – Not ready in notice

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JUDGMENT

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This Second Appeal has been filed to set aside the judgment and

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decree dated 20.12.2016 made in A.S.No.136 of 2016 on the file of the learned XVI Additional City Civil Court, Chennai reversing the judgment and decree dated 04.01.2016 made in O.S.No.943 of 2012 on the file of the XVII Assistant City Civil Court, Chennai.

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2. Heard Mr.M.Balasubramanian, learned counsel appearing for the

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appellant. There is no appearance for the respondents 1 and 2. The 3^rd respondent died and respondents 4 and 5 are brought on record as the legal

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representatives of the deceased 3^rd respondent. Notice sent to the 4^th respondent returned un-served with an endorsement “door locked”. Name of the 5^th respondent has been printed in the cause list, but, none appeared for the 5^th respondent.

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3. The learned counsel appearing for the appellant would submit that the appellant had filed a suit for permanent injunction restraining the respondents/ defendants from in any manner interfering with his right from collecting the monthly rents from the tenants who are in occupation of the schedule mentioned properties. The 1^st respondent alone contested the suit and the 2^nd and 3^rd respondents remained absent and they were set exparte. By a well considered judgment and decree, the suit was decreed granting a permanent injunction as prayed for. As against the same, the 1^st respondent/ 1^st defendant had filed a first appeal and the first appellate Court had reversed the judgment and decree and dismissed the suit.

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4. The 1^st defendant had purchased the suit property from the 2^nd defendant and then the said sale had been canceled by a fair and decreetal

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S.A.No.434 of 2017

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order made in I.A.No.19007 of 2007 in O.S.No.9381 of 2006 dated 19.07.2010 on the file of the District Munsif Court, Chennai. The Civil Revision Petition filed against the same was dismissed as infructuous by recording the statement that the suit in which the the impugned order was passed has been withdrawn. He would submit that the order passed in the interlocutory application stage also gets effaced with the disposal of the suit. But, in case when the sale deed was directed to be cancelled by orders of the Court and when the suit was sought to be withdrawn, it would be proper to record that the interim order granted by this Court stood effaced. However, no such proceedings was recorded when the suit was withdrawn. But, the first appellate Court interpreted that on withdrawal of the suit, the sale by the 2^nd defendant in favour of the 1^st defendant becomes valid. The learned counsel would submit that such a finding given by the first appellate Court is contrary to the facts and therefore the 2^nd defendant did not have a valid right to sell the suit schedule property to the 1^st defendant and therefore, the 1^st defendant cannot be said to have a perfected title over the suit schedule property to deny the relief to the appellant/ plaintiff.

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5. The appellate Court had given a finding that in view of the dismissal

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of the suit as not pressed, the interim application had become infructuous. The appellate Court failed to appreciate that the interim application had already been disposed of holding that the sale deed executed in favour of the 2^nd respondent was bad and hence ordered cancellation of the said sale deed. Therefore, he would submit that the finding arrived at by the first appellate Court in reversing the well considered judgment of the trial Court is liable to be set aside.

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6. Various substantial questions of law had been raised by the appellant, but, he would press this Court to frame the question No.A as the substantial question of law.

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7. I have considered the submissions of the appellant and perused the materials available on record.

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8. From the facts that has been narrated above and on going through the pleadings, judgment and decree of the Courts below, this Court is

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S.A.No.434 of 2017

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satisfied that the following substantial question of law arises for consideration:

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Whether the sale deed executed in favour of the 1^st defendant by the 2^nd defendant after the sale is set aside in I.A.No.19007 of 2007 in O.S.No.938 of 2006 on 19.07.2010 without challenging the same the 2^nd defendant has got any right to execute the sale deed in favour of the 1^st defendant herein?

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9. As rightly pointed out by the learned counsel appearing for the appellant, the sale deed in favour of the 2^nd defendant was held to be bad & by a fair and decreetal order, the trial Court had cancelled the said sale deed, which has been marked as Ex.B7. The 2^nd defendant under Ex.B8 had sold the property to the 1^st defendant. The effect of the order passed in the Interlocutory Application would indicate that the 2^nd respondent had lost his right to execute the sale deed. Therefore, Ex.B8 sale deed even though made on 10.06.2020 before the order in I.A.No.19007 of 2007 cannot be said to be a valid sale. It is to be noted that the 2^nd defendant had challenged the order made in the interlocutory application in C.R.P.No.2829 of 2010 and under

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Ex.B10 the said Civil Revision Petition had been dismissed as infructuous, as the suit itself was dismissed as withdrawn on 06.01.2011. The order in

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I.A had not been set aside in the manner known to law. The finding of the appellate Court that the I.A. itself had become infructuous cannot be applied to the facts of the case, as the right of the 2^nd defendant to hold over the property had been set at naught. When the suit had been withdrawn, only the pending Interlocutory Applications on that day can be said to have become infructous and not an Interlocutory Application which had been disposed of determining the right of the party to the suit. The right which was determined under I.A. by the order dated 19.07.2010 cannot be said to have been eclipsed by the withdrawal of the suit. Since by the order and decree of this Court the sale deed which was executed in favour of the 2^nd defendant had been negated, unless and until the said judgment and decree is set aside by the manner known to law, the 2^nd defendant cannot be said to have any valid title.

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10. Therefore, the finding of the appellate Court that the 1^st respondent/ 1^st defendant had a valid title, to reverse the judgment and decree

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S.A.No.434 of 2017

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of the trial Court, in the considered view of this Court would have to be interfered with and the same has to be set aside. Accordingly, the judgment and decree dated 20.12.2016 made in A.S.No.136 of 2016 on the file of the XVI Additional City Civil Court, Chennai is set aside.

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11. In fine, the Second Appeal stands allowed. No costs.

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01.08.2025

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dsa

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Index : Yes/No Speaking Order/Non-Speaking order

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