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2016 Supreme(Mad) 1621

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DURAISWAMY, J.
G. Janobai – Petitioner
Vs.
V.M. Devadoss – Respondent
C.R.P. (NPD) No. 1104 of 2016 & C.M.P. No. 6079 of 2016
Decided On : 14-06-2015

Advocates Appeared:
For the Petitioner: Mr. T. Viswanatha Rao.
For the Respondent: Mr. R. Bharath Kumar.

Headnote:

Tamil Nadu Urban and Land (Ceiling and Regulation) Act, 1978 - Civil Procedure Code,1908 - Section 47 - Order 21, Rule 11 - Execution of suit sale agreement - Execution Petition - Fair and final order - As against judgment and decree passed by Trial Court defendants preferred an appeal in A.S before this court and Division Bench of this court by its judgment and decree confirmed judgment and decree passed by Trial Court and dismissed appeal - Aggrieved over same defendants preferred an appeal before Honble Supreme Court of India in S.L.P.(Civil) and Honble Apex Court also dismissed Special Leave Petition on - Thereafter, the respondent-plaintiff filed an Execution Petition in E.P. before II Additional District Court under Order 21 Rule 11 of Civil Procedure Code - In said Execution Petition defendants-judgment debtors filed an application in E.A. under section 47 of Civil Procedure Code to dismiss Execution Petition in E.P as decree being unenforceable – Held, Trial Court taking into consideration oral and documentary evidences decreed the suit in O.S. - Against which judgment debtors preferred an appeal before this court in A.S and this court also confirmed the judgment and decree passed by Trial Court and dismissed appeal - Even before this court revision petitioners-judgment debtors did not raise an issue with regard to decree granted by Trial Court in respect of entire extent of acres - When judgment judgment-debtors contend that they have sold an extent of cents in year itself they could have raised the said issue either before trial Court or before this court in first appeal or before Honble Supreme Court in Special Leave Petition - Judgment and decree of this court was also confirmed by Honble Supreme Court in S.L.P by its order - Civil Revision Petition is dismissed

ORDER :

1. Challenging the fair and final order passed in E.A.No.7 of 2014 in E.P.No.69 of 2013 in O.S.No.222 of 2004 on the file of II Additional District Court, Poonamallee, the judgment debtors have filed the above Civil Revision Petition.

2. The plaintiff filed the suit in O.S.No.222 of 2004 for specific performance.

3. After contest, the suit was decreed by the Trial Court on 21.08.2007.

4. As against the judgment and decree passed by the Trial Court, the defendants preferred an appeal in A.S.No.1114 of 2007 before this court and the Division Bench of this court, by its judgment and decree dated 07.03.2012, confirmed the judgment and decree passed by the Trial Court and dismissed the appeal.

5. Aggrieved over the same, the defendants preferred an appeal before the Hon'ble Supreme Court of India in S.L.P.(Civil) No.15460 of 2013 and the Hon'ble Apex Court also dismissed the Special Leave Petition on 01.07.2013. Thereafter, the respondent-plaintiff filed an Execution Petition in E.P.No.69 of 2013 before the II Additional District Court, Poonamallee under Order 21, Rule 11 of Civil Procedure Code. In the said Execution Petition, the defendants-judgment debtors filed an application in E.A.No.7 of 2014 under section 47 of the Civil Procedure Code to dismiss the Execution Petition in E.P.No.69 of 2013 as the decree being unenforceable.

6. The judgment debtors contended that after the execution of the suit sale agreement dated 2.9.1996, they executed two sale deeds, viz., one sale deed dated 16.9.1998 conveying an extent of 47 cents out of the total extent of 10.83 acres of the suit property in favour of one C.M. Parthasarathy and another sale dated 16.9.1998 conveying another extent of 47 cents out of the total extent of 10.83 acres of the suit property in favour of one P.Damodharan. It was contended by the judgment debtors that these two sale transactions have not sofar been specifically set aside in any valid legal proceedings and in the absence of such cancellation, the decree holder is not entitled to compel them to execute the sale deed conveying the entire extent of 10.83 acres in his favour in the execution of the decree for specific performance obtained by him. Further, the judgment debtors contended that these two sale deeds are reflected in the Encumbrance Certificate in respect of the suit property and no steps have been taken in this regard by the decree holder to delete them sofar.

7. The decree holder in his counter has stated that the judgment debtors have filed the suit in O.S.No.326 of 2002 on the file of Subordinate Court, Poonamallee to declare four sale deeds dated 27.12.1999 executed by the respondent-decree holder as Power of Attorney Agent of (i) C.M.Parthasarathy, (ii) P.Damodharan, (iii) M.N.Sundararaman and (iv) M.S.Sathyanarayanan executed in favour of one N.Baskar and A.S.Sridhar as sham and nominal and does not pass title to them. Further, in the said suit, the judgment debtors prayed to declare that the sale deeds executed by the decree holder and others in favour of the Commissioner Kunrathur Panchayat Union are not binding upon them. The said suit was decreed in favour of the petitioners declaring that the sale deed are not binding on the judgment debtors. Further, the decree holder has stated that the sale deeds dated 16.9.1998 are not binding on the judgment debtors and they are also sham and nominal documents.

8. On a perusal of the plaint filed in O.S.No.326 of 2002, it could be seen that the judgment debtors have stated in paragraph No.5 that the property agreed to be sold is 10.83 acres and further having regard to the fact that the alienation of such a large extent of vacant land is illegal and invalid under the then prevailing Tamil Nadu Urban and Land (Ceiling and Regulation) Act, 1978, the decree holder herein, in order to purchase the property, without legal hurdles, employed various devious methods and entered into acts of subterfuge. Further, the judgment debtor has stated that the decree ho






























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