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1986 Supreme(AP) 229

Andhra Pradesh High Court
Judges : K.RAMASWAMY
Tahera Sayeed - Appellant
Versus
M.Shanmugam - Respondent
Decided On : 07-01-86

The inherent power of the court can be exercised to prevent abuse of the process of the court or fraud on the court or to meet the ends of justice.

Headnote:

CIVIL PROCEDURE CODE - O. 21, R. 97 - APPLICATION FOR REMOVAL OF OBSTRUCTION - MAINTAINABILITY - INHERENT POWER OF THE COURT - EXERCISE OF - CONDITIONS.

Fact of the Case:

The petitioner, who was in possession of a house, filed a suit to cancel the sale deed executed in favor of Periaswamy, the respondent, on the ground of fraud. An interim injunction was granted restraining Periaswamy from disturbing her possession. Periaswamy, in collusion with the respondents, filed a suit in the Madras High Court and obtained an ex parte decree for specific performance of the sale agreement. Shanmukham, one of the respondents, filed an application for execution of the decree and obtained possession of a portion of the house. The petitioner filed an application under O. 21, R. 97 of the Civil Procedure Code, seeking a declaration that she was not liable to be dispossessed of the portion of the house in her possession.

Finding of the Court:

The court held that the petitioner's application was maintainable under O. 21, R. 97 of the Civil Procedure Code. The court also held that the inherent power of the court could be exercised to prevent abuse of the process of the court or fraud on the court or to meet the ends of justice.

Issues: 1. Whether the petitioner's application under O. 21, R. 97 of the Civil Procedure Code was maintainable? 2. Whether the inherent power of the court could be exercised in the present case?

Ratio Decidendi: 1. The court held that the petitioner's application was maintainable under O. 21, R. 97 of the Civil Procedure Code because: * The petitioner was in possession of the house and had a right to protect her possession. * The respondents were claiming possession of the house under a decree obtained by fraud and collusion. * The petitioner had no other remedy to protect her possession. 2. The court held that the inherent power of the court could be exercised in the present case to prevent abuse of the process of the court and to meet the ends of justice.

Final Decision: The court allowed the petitioner's application and remitted the matter to the lower court for enquiry under O. 21, Rr. 98 and 101 of the Civil Procedure Code.

K. RAMA SWAMY, J.

( 1 ) THE petitioner is possessed of the house bearing No. 10-2-287/1 in A. C. Guards, Santhinagar, Hyderabad which respondent 3, Periaswamy purchased in two portions, A portion in the name of his wife and daughter (respondents 4 and 5) and B portion in his name, under two sale-deeds dated 31/03/1978 and 15/07/1979, respectively. It is the case of the petitioner that the cheques issued by Periaswamy as consideration for the sale of B portion house were bounced and thus received no consideration; thereby Periaswamy played fraud on her. On demand, Periaswamy surrendered possession of the B portion under Ex. A-4 affidavit dated 4/09/1980. The petitioner laid the suit, O. S. No. 1307/80 which was renumbered as O. S. No. 306/82 in the Court of the Addl. Chief Judge, City Civil Court, Hyderabad, to declare that the sale as invalid or for specific performance. He also filed I. A. 1492/80 against Periaswamy for ad interim injunction restraining him from interfering with her possession. Interim injunction was granted and it was made absolute, which was upheld by this Court in C. M. A. 240/81 dated 29/07/1981.

( 2 ) WHILE the matters stood thus, it emerges that Periaswamy purported to have executed an agreement of sale dated 30/11/1979 under Ex. B3 in respect of A and B portions, in favour of Shanmukham. For enforcement thereof, immediately, a suit C. S. 61/82 was filed in the High Court of Madras for specific performance of the properties at Hyderabad, which was decreed ex parte on 14/03/1983 under Ex. B8. Shanmukham was to deposit sale consideration in Court, but it was not done. Yet, E. P. was filed to execute the sale-deed stating that the amount was received outside the Court. In the meanwhile, T. Narasimha, respondent 2 filed application No. 2433/8 4/06/1984 in the said suit, C. S. 61/82 stating that he had purchased half share in that property from Shanmukham and a sale-deed may be executed in his favour and an order was passed thereon to that effect. Pursuant thereto, two sale-deeds were executed on August 27, 1984 by the Madras High Court, in favour of Shanmukham and T. Narasimha in respect of half share each in the house. Then E. P. No. 93/84 was filed for transmission for execution to take delivery of possession which was transferred accordingly. T. Narasimha filed E. P. 6/85, in the Court of the First Addl. Judge, City Civil Court, Hyderabad, for delivery of possession of A portion i. e. 10-2-287/1a, of an extent of 800 sq. yards or 652 sq. meters, consisting of a double-storied building, and had taken possession thereof on 11/02/1985. Subsequently, Shanmukham filed E. P. 10/85 to deliver possession of B portion i. e. , 10-2-287/1b, to him. For none of the aforesaid proceedings the petitioner was made a party. Then the petitioner had objected to deliver possession of B portion when she became aware of the E. P. Thereafter he had withdrawn the E. P. and it was dismissed on 31/12/1985. In the interregnum, T. Narasimha filed E. P. 42/8 5/09/1985 to deliver possession of B portion i. e. , 10-2-287/1b, by Periaswamy and two others with their address at Secunderabad. The petitioner was not, even now, made a party. He admits that he had taken possession of A portion on 16/02/1985 and he claims for B portion, on an alleged inter se agreement between him and Shanmukham. On becoming aware of this, the petitioner filed E. A. 5/85 seeking declaration"that she is not liable to be dispossessed of the B marked portion of the premises. "that application now stands dismissed by the Court below, as against which the C. R. P. has been filed.

( 3 ) THE claim of the petitioner which was ably supported by her learned counsel, Mr. M. L. Ganu is that the petitioner laid the suit to cancel the sale Ex. B-2 of her B portion property to Periaswamy since Periaswamy played fraud on her and obtained the sale-deed without payment of consideration. The interim injunction restraining Periaswamy from disturbing her possession of B portion is










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