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High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
V.P. Narayanasamy
Versus
Gurusamy & Others
C.R.P. (PD) Nos. 2758 & 3216 of 2014 & M.P. No. 1 of 2014
Decided On : 10-12-2014
Limitation Act of 1908 - Section 3 read with 28 - Suit property was allotted to share - Declare sale deed executed - Claiming to be purchaser of suit property - Plaintiffs father purchased suit property on way of sale deed and he was in possession and enjoyment of same till his - Thereafter a family partition took place on and under a deed of partition suit property was allotted to share of plaintiffs herein - First defendant is paternal aunt of plaintiffs – Earlier plaintiffs filed against one Muhammad first defendant herein and one to declare sale deed executed between said Muhammad and as not binding on plaintiffs and that said sale deed is not valid - Petitioner herein got himself imp leaded in said suit as third defendant claiming to be purchaser of suit property as per decree in - Said order of impalement along with other miscellaneous orders were challenged by plaintiffs before this Court and by order dated 18.2.2013, this Court gave an opportunity to plaintiffs to work out their remedies as against decree - Defendants have fabricated so-called unregistered sale agreement and filed said suit after a lapse of twenty years and got ex-parte decree against so-called power agent without imp leading principal or legal heirs of principal - Such hurriedly secured decree was laid down for execution resulting a fraudulent sale deed - Therefore execution proceedings are nothing but fraudulent act on Court for securing illegal benefit - Fraud vitiates all transactions including judicial proceedings and there is no limitation for attacking such fraudulent transaction – Held, this case it is contended by counsel for petitioner second defendant that Article 58 of Limitation Act would apply which contemplates three years as period of limitation to obtain any other declaration when right to sue first accrues - On other hand it is contended by counsel for respondents that present suit is filed for setting aside decree made and for said relief relevant Article is only Article 59 which contemplates three years as period of limitation that too applies only to parties to proceedings and not to third parties like respondents herein who are admittedly not Thus he contended that they have filed present suit based on liberty granted to them in earlier discussed supra - Considering these rival submissions court of view that above said aspect of matter has to be considered by trial Court based on facts and circumstances of case as well as relevant provision of law - Certainly such exercise cannot be done while considering application under Order 7 Rule as discussed supra - Counsel for petitioner further relied on a decision of this reported in contend that suit ought to have been filed within three years - Facts of said case would reveal that release deed of has not been challenged even in on ground of fraud undue influence and coercion and when such release deed having not been set aside within three years suit filed relief of declaration to declare said release deed is barred by limitation - In my considered view facts of present case are totally different and distinguishable with facts of said case especially under circumstance that this Court - cited supra has granted liberty to respondents and herein to challenge decree made – Petition is dismissed
K. RAVICHANDRABAABU, J.
1. C.R.P. (PD) No. 2758 of 2014 is filed by the second defendant in O.S. No. 183 of 2013, aggrieved by the order of the trial Court in dismissing his application for rejection of the plaint. C.R.P. (PD) No. 3216 of 2014 is filed by the very same second defendant, who is the third defendant in O.S. No. 165 of 2007, challenging the order of the trial Court ordering joint trial of O.S. No. 183 of 2013 with O.S. No. 165 of 2007.
2. Learned counsel appearing for the petitioner submitted that the order to be passed in C.R.P. (PD) No. 2758 of 2014 is having a bearing on the order to be passed in C.R.P. (PD) No. 3216 of 2014 and therefore, she submitted that C.R.P. (PD) No. 2758 of 2014 can be first taken up, considered and decided on merits.
3. The second defendant in O.S. No. 183 of 2013 on the file of the District Munsif Court, Sathyamangalam, is the revision petitioner. The respondents 1 and 2 herein as plaintiffs, filed the said suit against the petitioner herein and one Muthammal, seeking for declaration to declare the decree obtained in O.S. No. 120 of 2007 (District Munsif Court, Sathyamangalam) as fraud, null and void and not binding on the plaintiffs.
4. The case of the plaintiffs in the abovesaid suit is as follows:-
The plaintiffs' father purchased the suit property on 5.12.1960 by way of sale deed and he was in possession and enjoyment of the same till his death on 23.7.1989. Thereafter, a family partition took place on 2.3.2007 and under a deed of partition, the suit property was allotted to the share of the plaintiffs herein. The first defendant is the paternal aunt of the plaintiffs. Earlier, the plaintiffs filed O.S. No. 165 of 2007 against one Muthammal (first defendant herein) and one Peranandam to declare the sale deed executed between the said Muthammal and Peranandam as not binding on the plaintiffs and that the said sale deed is not valid. The petitioner herein got himself impleaded in the said suit in O.S. No. 165 of 2007 as the third defendant, claiming to be the purchaser of the suit property as per the decree in O.S. No. 120 of 2007. The said order of impleadment along with other miscellaneous orders, were challenged by the plaintiffs before this Court in C.R.P. (PD) Nos. 1353 to 1355 of 2012 and by order dated 18.2.2013, this Court gave an opportunity to the plaintiffs to work out their remedies as against the decree in O.S. No. 120 of 2007. The defendants have fabricated the so-called unregistered sale agreement, dated 2.11.1987 and filed the said suit in O.S. No. 120 of 2007 after a lapse of twenty years and got the ex-parte decree against the so-called power agent without impleading the principal or legal heirs of the principal. Such hurriedly secured decree was laid down for execution, resulting in a fraudulent sale deed, dated 6.3.2008. Therefore, the execution proceedings are nothing but fraudulent act on the Court for securing illegal benefit. Fraud vitiates all transactions including judicial proceedings and there is no limitation for attacking such fraudulent transaction.
5. Pending the said suit in O.S. No. 183 of 2013, the second defendant (petitioner herein) filed I.A. No. 1589 of 2013 under Order 7 Rule 11 CPC seeking for rejection of the plaint on the ground that the suit is barred by limitation, even on the face of a reading of the plaint and that the plaintiffs cannot take advantage of the order passed by this Court in C.R.P. Nos. 1353 to 1355 of 2012, dated 18.2.2013, as any liberty given is only subject to the law of limitation. The said application was resisted by the plaintiffs. The trail Court dismissed the said application by holding that it is only the plaint averments that are to be considered and the Court does not find any materials in the plaint showing the same as barred under law. It is further observed by the trial Court that the question of limitation is a mixed question of fact and law, which cannot be decided at the threshold without givin
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