Back
1995 Supreme(SC) 30
SUPREME COURT OF INDIA
K. RAMASWAMY AND Mrs. SUJATA V. MANOHAR, JJ.
Rajeswari Amma and another, Appellants
Versus
Joseph and another, Respondents.
Civil Appeal No. 695 of 1986
Decided on 10-1-1995.
Anjani Aiyagiri, Francis Julian, G.VISHVANATHA IYER, K.RAM KUMAR, N.SRIDHAR REDDY, R.MOHAN
An order for delivery of possession of undivided property is common and inseparable; if such an order attains finality against one decree-holder, it cannot be set aside against others, and this point, being a question of law, can be raised even if not previously argued.
Headnote:(A) Civil Procedure - Execution of Decree - Delivery of possession of undivided property - Order of delivery of possession in favour of multiple decree-holders is common and inseparable - If such order becomes final against one decree-holder due to non-impleadment in revision proceedings, the court cannot set aside the order against other decree-holders.
(B) Question of Law - A pure question of law can be raised for the first time before the appellate court even if it was not raised before the court below, particularly when the order is of an inseparable nature.
Facts of the case:
An execution petition for delivery of possession of undivided property was filed by three legal representatives of a deceased person. The executing court ordered delivery of possession in favour of all three. This order was challenged in revision before the High Court, but only two of the three decree-holders were impleaded as respondents. The High Court set aside the order against the two impleaded parties, while the order remained final against the third unimpleaded party.
Findings of Court:
The High Court was not right in reversing the order of the executing court as against two respondents because the order of delivery of possession was common and inseparable and had already attained finality against the third decree-holder.
Issues: Whether the High Court was justified in setting aside an order of delivery of possession against some decree-holders when the order was common and inseparable and had become final against an unimpleaded decree-holder.
Ratio Decidendi: Since the order of delivery of possession in favour of the decree-holders is common and inseparable, and since it had become final as against the unimpleaded party, the order cannot be set aside against the other parties. A question of law regarding the inseparability of the order is maintainable even if not raised in the lower court.
Result: Appeal allowed.
Legal Category Hierarchy
-
practice and procedure
-
civil procedure
-
execution proceedings
- delivery of possession
-
execution proceedings
-
civil procedure
JUDGMENT
Admittedly, the execution petition was filed by Rajeshwari Amma, Sukumara Pillai and Neelamma Pillai, the legal representatives of the deceased Kolappa Pillai. After the execution petition was ordered by the Court of District Munsif at Kuzithurai in E.P. No. 274/81 in O.S. No. 14/61 dated August 12, 1981, the respondents carried it in revision to the High Court. Therein only the deceased Kolappa Pillai, Rajeswari Amma and Sukumara Pillai were impleaded as respondents omitting Neelamma Pillai. In other words, the order of the Executive Court directing delivery of possession which was executed and possession taken in favour of the three persons was challenged against only two persons. The order in favour of 3rd person, namely, Neelamma Pillai became final. The Execution Petition being of the same property which is undivided between the decree-holders, the question emerges whether the High Court was right in allowing C.R.P. No. 2747/82 by order dated July 1,1985 as against the unimpleaded respondent and whether that order also comes in aid to the appellants. On going through the record we find that there is some force in the arguments of Sri G. Viswanatha Iyer, the learned Senior counsel for the appellants. Since the order of delivery of possession in favour of the decree-holders is common and inseparable and since it has become final as against Neelamma, the High Court was not right in setting aside the order as against the appellants. No doubt, as rightly pointed out by the learned counsel for the respondents that this contention was not raised before the High Court. But being a question of law, it is open to be raised and can be considered as the order is one of inseparable. Since the order against Neelamma had attained finality, we think that the High Court was not right in reversing the order of the executing Court as against two respondents. The appeal is accordingly allowed. No costs.
Appeal allowed.
For Citation: AIR 1995 SC 719
