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2008 Supreme(Mad) 3065

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
E.M. Kannappan & Others
Versus
G. Syamala & Others
C.R.P.(N.P.D.) No.2545, 2546 and 2547 of 2007 and M.P.Nos.1 of 2007
Decided on : 26-08-2008

Advocates Appeared:
For the Petitioners:R. Loganathan, Advocate.
For the Respondents:

The central legal point established in the judgment is the requirement for a thorough examination of facts and law, and the need to provide findings on all grounds raised before disposing of a petition.

Headnote:

Legal Heirs - Recognition of Legal Heirs in Execution Proceedings - Section 47 of C.P.C. - Succession Certificate - Will - Impleading of Legal Representatives - Delay in Proceedings

Fact of the Case:

The case involves a dispute over the recognition of legal heirs in execution proceedings. The proposed decree holders sought recognition as legal heirs of the deceased decree holder to proceed with execution proceedings. The counter affidavit challenged the impleading of a third proposed petitioner and raised concerns about the delay in proceedings.

Finding of the Court:

The Court found that the lower court failed to analyze the grounds raised in the counter affidavit and disposed of the petition without thorough examination of the facts and law. The matter was remitted back to the lower court for a complete discussion on facts and law, with directions to afford ample opportunity for both sides to lead evidence.

Issues: The issues revolved around the recognition of legal heirs, impleading of legal representatives, production of succession certificate and will, and the delay in proceedings.

Ratio Decidendi: The court emphasized the need for a thorough examination of facts and law, and the requirement to provide findings on the grounds raised in the counter affidavit. It highlighted the importance of analyzing all aspects before disposing of the petition.

Final Decision: The Civil Revision Petitions were disposed of with directions to remit the matter back to the lower court for a complete discussion on facts and law, and to afford ample opportunity for both sides to lead evidence. The lower court was directed to dispose of the Execution Application within one month.

Judgment :

The Civil Revision Petitions are filed against the order of the learned District Munsif, Tambaram made in E.A.No.33 of 2007 in E.P.No.154 of 1993 dated 22.06.2007.

2. The allegations found in the affidavit of the Respondents/Proposed Decree Holders are as follows:

2 (i) The proposed parties are wife, son and daughters of the Decree Holder G. Chandraiah, who died on 4. 2006 leaving behind them as his legal representatives. He executed the will dated 13. 2006 bequeathing the suit property on the proposed decree holders excepting the third proposed party by name G. Srinivasan. Further, he is added as a proposed party by way of abundant caution. Hence the petition has been filed to recognise them as legal heirs of the deceased decree holder and permit them to proceed with execution proceedings.

3. In the Counter affidavit filed by the first respondent in the execution proceedings by name E.M. Kannappan, the following have been averred.

3. (i) Though the deceased decree holder has not bequeathed the suit property in favour of the third proposed petitioner G. Srinivasan, impleding him as one among the decree holders is unsustainable. This counter is filed on behalf of the respondents 1 and 6 to 11 challenging the maintainability of the petition. There is no proceedings in the original suit on the legal representatives of Judgment Debtor Alamelu Ammal. But how the name of Alamelu Ammal has been shown in cause title of the present application is not known, when there being no proceedings taken against her. The present petition has been filed in two capacities, one by means of inheritance as legal heirs to the property and other is on the strength of alleged Will. The petitioner has not produced any succession certificate nor the alleged Will dated 13. 2006. Chandraiah died on 02.04.2006 but the notice of hearing was given to the respondents side on 13.03.2007 and they have not only filed any applications to condone the delay, and to set aside the abatement which has occurred in default of taking steps to implead the legal representatives in time. These respondents filed applications under Section 47 of C.P.C. and the orders passed in those applications were taken before the High Court, Madras in C.R.P.Nos.1259 of 2005, 1260 of 2005 and 1261 of 2005. All of them were dismissed on 110. 2006. Filing Civil Miscellaneous Petitions for impleading the legal representatives without assigning any reason for delayed approach before this Court could not be maintainable. Hence the petition may be dismissed.

4. Even though in the counter affidavit, very many grounds have been raised assailing the allegations in the affidavit filed by the proposed decree holders, it is unfortunate to note that the Court below has not adverted to any of the grounds but simply disposed of the petition by means of a cryptic order, by observing that the petitioners have produced legal heirship certificate issued by Tahsildar and since the dispute is with regard to the immovable property, there is no need to produce succession certificate. The above said observation may constitute one among the reasons to allow the application. But when the other grounds are available in the Counter, it is incumbent upon the Court to analyse them in the light of the submissions advanced from both sides. In the Counter affidavit it is stated that the deceased Chandraiah had bequeathed the suit property in favour of the proposed decree holders except the third proposed petitioner G. Srinivasan. While there is a specific allegation as to the impleading of third petitioner is alleged in the counter, the Court below should have examined the circumstances under which he is on the array of the petition. In other words, the order of the Court below should have contained the reasoning for permitting the third petitioner to come into record.

5. Yet another limb of contention on behalf of the appellants is that while Alamelu Ammal was not impleaded in the original proceedings, for wha





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