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2017 Supreme(Mad) 1899

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAVINDRAN, J.
G. Radhakrishnan Nair -Petitioner
Versus
Sarabunisha& Ors. -Respondents
C.R.P. (NPD) (MD) No.399 of 2007, M.P. (MD) Nos.1 of 2007 & 1 of 2012, C.M.P.(MD) No.8462 of 2016
Decided On : 06-09-2017

Advocates Appeared:
For the Petitioner: Mr.V.M.Balamohanthampi
For the Respondents: Mr. Nandakumar, Mr. M.R. Sreenivasan

Headnote:

Civil Procedure Code,1908 - Order XXI Rule 58 - Petitioner/plaintiff had put said decree in execution by filing E.P.No.101 for further action against property described in execution petition for realization of decreetal amount - At that stage of the matter, it is found that first respondent, who is a stranger, had laid an application in E.A.No.31 seeking for impleadment of herself in execution proceedings on footing that she has purchased property described in execution petition from her predecessor-in-interest and as such property described in execution petition not being the property of second respondent/defendant, she should also be impleaded in execution proceedings initiated by petitioner/plaintiff so as to enable her to put forth her objections as she is also a proper and necessary party to execution proceedings - Said application had been resisted by petitioner/plaintiff on footing that there is no scope for implement of any third party in execution proceedings as per law and if at all first respondent has any claim in respect of property concerned, it is for her to prefer necessary claim application in execution proceedings and not impleadment application as now laid and further, it is contended that first respondent has no valid title to the property covered in execution proceedings as claimed by her and hence, application is liable to be dismissed – Held, All aspects had not been gone into by Court below in the proper perspective and on other hand, based upon oral evidence of the first respondent’s husband and the documents marked on the side of the first respondent, without adjudicating the objections made by petitioner/plaintiff with reference to the same, as discussed above, it is found that Court below has passed a formal order allowing impleadment of the first respondent without adjudicating rights and objections of respective parties concerned, with reference to the property involved in the execution proceedings and in such view of the matter, it is found that order of the Court below in allowing the impleadment of the first respondent as such cannot be accepted in any manner - As seen above, there is no scope for impleadment of third parties to execution proceedings without establishing a prima facie claim of right to the property involved in the execution proceedings - Accordingly, decisions relied upon by learned counsel for the first respondent reported as rightly argued by the learned counsel for the petitioner/plaintiff, would not be applicable to the case at hand - In the light of above discussions, fair and decreetal orders, passed in E.A.No.31 in E.P.No.101 in O.S.No.55 , on file of Principal District Munsif Court, cannot be sustained and accordingly, they are set aside - Resultantly, civil revision petition is allowed - Consequently, connected miscellaneous petitions are closed.

ORDER :

1. The civil revision petition is directed against the fair and decreetal orders, dated 14.07.2006, passed in E.A.No.31 of 2005 in E.P.No.101 of 2004 in O.S.No.55 of 1998, on the file of the Principal District Munsif Court, Padmanabhapuram.

2. It is found that the petitioner/plaintiff has laid the suit, in O.S.No.55 of 1998, against the second respondent/defendant for recovery of money and it is further found that inasmuch as the second respondent/defendant did not contest the suit, the petitioner/plaintiff had been granted a decree in his favour as prayed for. The petitioner/plaintiff had put the above said decree in execution by filing E.P.No.101 of 2004 for further action against the property described in the execution petition for realization of the decreetal amount. At that stage of the matter, it is found that the first respondent, who is a stranger, had laid an application in E.A.No.31 of 2005 seeking for the impleadment of herself in the execution proceedings on the footing that she has purchased the property described in the execution petition from her predecessor-in-interest and as such the property described in the execution petition not being the property of the second respondent/defendant, she should also be impleaded in the execution proceedings initiated by the petitioner/plaintiff so as to enable her to put forth her objections as she is also a proper and necessary party to the execution proceedings. The said application had been resisted by the petitioner/plaintiff on the footing that there is no scope for impleadment of any third party in the execution proceedings as per law and if at all the first respondent has any claim in respect of the property concerned, it is for her to prefer necessary claim application in the execution proceedings and not the impleadment application as now laid and further, it is contended that the first respondent has no valid title to the property covered in the execution proceedings as claimed by her and hence, the application is liable to be dismissed.

3. It is found that the first respondent for the purpose of impleadment, has taken a plea that even prior to the institution of the suit, the second respondent/defendant had alienated the property concerned to one Ramkumar, by way of a sale deed, dated 15.10.1996 and the said Ramkumar had in turn alienated the same to one Oommen Babu by way of a sale deed, dated 19.02.1997 and the said Oommen Babu, after enjoyment of the said property, had alienated the same in favour of the first respondent for a valid consideration by way of a sale deed, dated 24.11.2003, and accordingly, it is only the first respondent, who had been enjoying the property concerned by effecting mutation and paying necessary charges in respect of the property concerned and thus, the petitioner/plaintiff is not entitled to proceed against the property concerned and thus, she is also a proper and necessary party for the execution proceedings.

4. The Court below found acceptance the case of the first respondent and accordingly, entertained the application preferred by her. Impugning the same, the present civil revision petition has been preferred.

5. As rightly argued by the learned counsel for the petitioner/plaintiff, it is found that the Executing Court as such is bound to execute the decree and cannot go beyond the terms of the decree by impleading the third parties to the proceedings, who are not the persons claiming right, title or interest in the decree through the decree-holder. As regards the above contention of the learned counsel for the petitioner/plaintiff, it has not been established by the learned counsel for the first respondent that the first respondent is entitled to seek for impleadment of herself in the execution proceedings as prayed by her.

6. However, it is argued by the learned counsel for the first respondent that inasmuch as the petitioner/plaintiff had endeavoured to proceed against the property purchased by the first respondent and as th







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