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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE V. KANAGARAJ
Sri Nallalagu Polytechnic Managing Committee, Kamaraj Education and Research Foundation Trust, Madras rep. by its secretary
Versus
D. Sivakumar
C.R.P.No.935 of 1996
Decided on: 23-02-2000
The petitioner, a trust, filed a petition under Section 47 of the Code of Civil Procedure (CPC) to challenge the execution of a decree passed in a partition suit. The respondent, who was the decree-holder, contended that the petition was barred by res judicata, lis pendens, and lack of jurisdiction. The lower court dismissed the petition, and the petitioner filed a civil revision petition in the High Court.
Fact of the Case:
The petitioner, a trust, purchased properties in 1975 and 1979. In 1979, a partition suit was filed against the third defendant, who was the predecessor-in-interest of the petitioner. The petitioner was not a party to the suit. In 1988, a final decree was passed in the partition suit, and the respondent was allotted half of the suit properties. In 1989, the respondent filed an execution petition to take possession of the properties allotted to him. The petitioner filed an application under Order 21, Rules 99 and 100 of the CPC for redelivery of the properties, but later withdrew the application. The petitioner then filed the present petition under Section 47 of the CPC, challenging the execution of the decree.
Finding of the Court:
The High Court held that the petitioner could not maintain the petition under Section 47 of the CPC because it was not a party to the partition suit and was not the representative of the third defendant. The court also held that the petition was barred by res judicata and lis pendens. The court further held that the lower court had jurisdiction to execute the decree.
Issues: 1. Whether the petitioner could maintain the petition under Section 47 of the CPC. 2. Whether the petition was barred by res judicata. 3. Whether the petition was barred by lis pendens. 4. Whether the lower court had jurisdiction to execute the decree.
Ratio Decidendi: 1. The court held that the petitioner could not maintain the petition under Section 47 of the CPC because it was not a party to the partition suit and was not the representative of the third defendant. The court relied on the fact that the petitioner had filed an application under Order 21, Rules 99 and 100 of the CPC as a third party, and had later withdrawn the application. The court also relied on the fact that the petitioner had not filed any document to show that it was the representative of the third defendant. 2. The court held that the petition was barred by res judicata because the petitioner had already filed an application under Order 21, Rules 99 and 100 of the CPC, which was dismissed by the lower court. The court relied on the fact that the petitioner had not appealed the lower court's order. 3. The court held that the petition was barred by lis pendens because the properties in question were the subject of the partition suit. The court relied on the fact that the petitioner had purchased the properties after the partition suit had been filed. 4. The court held that the lower court had jurisdiction to execute the decree because the decree had been transferred to the lower court by the High Court.
Final Decision: The High Court dismissed the civil revision petition and upheld the lower court's order dismissing the petition under Section 47 of the CPC.
1. This Civil Revision Petition is directed against the fair and decretal order dated 18.8.1994 made in E.A.No.999 of 1989 in E.P.No.2 of 1989 by the Court of District Munsif, Ponneri thereby dismissing an application filed by the petitioner under Section 47 of the Code of Civil Procedure, 1908.
2. The petitioner Trust has filed the petition before the lower Court under Section 47 of the Code of Civil Procedure, 1908 contending that it purchased an extent of 7.72 acres of land in various survey numbers at Thandalkalani Village and established therein Sri Nallalagu Polytechnic Institution; that subsequent to the execution of Kamaraj Education and Research Foundation Trust Deed, the administration of the Polytechnic came to be vested in the present Trust Board and the petitioners carry on the administration of the said Polytechnic as on today and that the properties including the sale deeds stand in the name of the Board of Management of Polytechnic.
3. The further contentions of the petition are that on 1.3.1989 at 10.00 a.m. the respondent came to the Polytechnic with 20 persons and informed that he had come with the Bailiff to take delivery of the properties mentioned in the decree made in C.S.No.130 of l979; that on protest, recording to the effect of the execution having been carried out, they left the place; that in fact, the petitioners have filed E.A.No.361 of 1989 against the respondent for redelivery of the entire property covered under the present Execution Petition under Order 21, Rules 99 and 100 but the present application is more appropriate; that the Execution Petition itself is not maintainable under Section 39 of the Code of civil Procedure since the Court of District Munsif, Ponneri has no jurisdiction to entertain it; that the decree-holder has chosen a wrong forum and hence the proceedings are void ab initio; that the petitioners are not parties to the suit, in spite of being the representatives in respect of the purchase of the property in 1979 and on such grounds would pray for holding an enquiry, into the aspect of jurisdiction and on the question of alleged delivery and dismiss the Execution Petition.
4. In the lengthy counter filed, the respondent would allege that the suit in C.S.No.130 of 1979 for partition and separate possession of his share in his ancestral property had been filed by him through his mother and next friend on 28.2.1979 along with an application in A.No.892 of 1979 for injunction restraining the first defendant in the suit, viz his father, from alienating any of the suit property and that the injunction was granted; that the third defendant in the suit viz Sennaivazh Nadargal Sangam, T.V.A. Nallalagu Nadar School Managing Board, represented by its Manager A.G. Srinivasaga Nadar were served with suit summons on 30.8.1979, but he did not choose to appear before the High Court and hence a preliminary decree was passed on 4.1.1984; that on 18.9.1987, he filed an application in A. No. 4414 of 1987 for declaring him a major and to discharge his mother from guardianship and the said application was ordered on 29.10.l987; that he also filed Application No. 4329 of 1987 for amending the decree and that application was ordered on 12.11.1987; that on 14.11.1987 he filed an application in Application No. 5870 of 1987 for appointment of Advocate-Commissioner for dividing 'B' and 'D' schedules of the suit properties by metes and bounds and to allot him half share and that application was also ordered on 21.12.1987 and the Advocate-Commissioner visited 'B' and 'D' schedule properties and submitted his report on 29.3.1988; that then he filed an application in Application No.1892 of 1983 on 14.4.1988 for passing a final decree in terms of the Commissioner's Report and final decree was passed as regards the landed properties on 26.8.1988; that he filed E.P.68 of 1988 on the file of the High Court of Judicature at Madras seeking possession of his half share and since the properties are situ
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