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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
Rajesh Lakshmi Chand - Petitioner
Versus
E. Maheswari & Others - Respondent
C.R.P.(NPD)Nos. 1843, 2346 & 3531 of 2013 & M.P. Nos. 1, 1 & 2 of 2013
Decided On : 27-02-2018
Code of Civil Procedure, 1908 – Section 151, 47 – Hindu Succession Act, 1990 – Specific performance of agreement of sale – Petitioner filed O.S. on the file of the III Additional Subordinate Court, Coimbatore against the second respondent for specific performance of agreement of sale – The said suit was decreed – First Appeal, A.S. and Second Appeal, S.A. filed by the second respondent were dismissed respectively. – Petitioner filed E.P. in O.S. to direct the second respondent to execute the sale deed in his favour for schedule mentioned property, failing which the Court may execute the sale deed. – Property involved in the suit is 86 cents in S.F.No.208 in Kurudampalayam village. – Held, Contention of the learned counsel for the first respondent that preliminary decree is not an exparte decree and the second respondent contested the suit is without merits. – Even though the second respondent filed written statement, but subsequently, he did not contest the case and no trial was conducted. – Based on the evidence of first respondent, preliminary decree was passed. It is only an exparte preliminary decree. – Similarly, the second respondent did not participate in the final decree application and did not seek for allotment of the suit property in O.S. filed for specific performance of agreement of sale. – The said property was allotted to the share of the first respondent. – The reasons given by the Executing Court for allowing the application filed by the first respondent under Section 47 CPC is erroneous and application is allowed without applying his mind. – When the Additional District & Sessions Judge, Fast Tract Court No.III, Coimbatore has not given any finding that the properties are ancestral properties, the Executing Court has erroneously held that the District Judge has given a finding that the petition mentioned property and other properties are ancestral properties of respondents 1, 2, 3 & 4 and the first respondent is entitled to 1/4th share in the said property including the suit property . – While considering an application under Section 47 CPC, a court can hold that a decree is inexecutable only when the said decree was passed by a court having no jurisdiction or void or nullity or is not executable under the law. – None of these condition exists in the present case and learned Judge, without considering these facts erroneously allowed the application. – Civil Revision Petitions Allowed
1. C.R.P.No.1843/2013 is filed against the fair and decretal order dated 06.04.2013 made in E.A.No.369 of 2009 in E.P.No.230 of 2008 in O.S.No.484 of 1984 on the file of the II Assistant Subordinate Court, Coimbatore.
C.R.P.No.2346/2013 is filed against the fair and decretal order dated 06.04.2013 made in E.P.No.230 of 2008 in O.S.No.484 of 1984 on the file of the II Assistant Subordinate Court, Coimbatore.
C.R.P.No.3531/2013 is filed against the fair and decretal order dated 26.11.2012 made in I.A.No.314 of 2011 in O.S.No.253 of 2007 on the file of the Additional District Court, Fast Tract Court-III, Coimbatore.
2. The issues involved in all the Civil Revision Petitions are interlinked and therefore, they are disposed of by this common order.
3. In C.R.P.No.1843 of 2013, the judgment debtor is the second respondent and his daughter/applicant in E.A.No.369 of 2009 is the first respondent. In C.R.P.No.2346 of 2013, the judgment debtor is the sole respondent. In C.R.P.No.3531 of 2013, the judgment debtor is the second respondent and his daughters are the respondents 1, 3 and 4. The parties are arrayed as per their rank in C.R.P.No.3531 of 2013.
4. The petitioner filed O.S.No.484 of 1984 on the file of the III Additional Subordinate Court, Coimbatore against the second respondent for specific performance of agreement of sale dated 30.08.1982. The said suit was decreed on 13.04.1989. The First Appeal, A.S.No.91 of 1989 and Second Appeal, S.A.No.1486 of 1991 filed by the second respondent were dismissed on 28.04.1990 and 13.09.2006 respectively. The petitioner filed E.P.No.230 of 2008 in O.S.No.484 of 1984 to direct the second respondent to execute the sale deed in his favour for schedule mentioned property, failing which the Court may execute the sale deed. The property involved in the suit is 86 cents in S.F.No.208 in Kurudampalayam village.
5. The first respondent filed E.A.No.369 of 2009 under Section 47 read with Section 151 of C.P.C to adjudicate her claim and for orders. According to the first respondent, she is the daughter of second respondent and as per State Amendment to Hindu Succession Act, 1990, she became a co-parcener along with two other daughters of second respondent, who are the respondents 3 and 4 in C.R.P.No.3531 of 2013. According to the first respondent, she and respondents 3 and 4 were not married as on the date of amendment came into force, i.e., on 25.03.1989 and they have acquired 1/4th share in all the properties standing in the name of second respondent. According to the first respondent, all the properties in the name of the second respondent are ancestral properties. The first respondent filed O.S.No.253 of 2007 against the respondents 2 to 4, who are her father and sisters for partition and the same was pending when she filed E.A.No.369 of 2009. According to the first respondent, the petitioner can execute the decree only in respect of < share in 86 cents in S.F.No.208 in Kurudampalayam Village.
6. The petitioner filed counter affidavit and contended that E.A.No.369 of 2009 filed by the first respondent is not maintainable. The second respondent/judgment debtor has instigated the first respondent, who is his daughter, to file O.S.No.253 of 2007 for partition after this Court by the judgment and decree dated 13.09.2006 dismissed S.A.No.1486 of 1991 filed by the second respondent and granting decree of specific performance in favour of the petitioner in respect of entire 86 cents in S.F.No.208 in Kurudampalayam Village. The suit filed by the first respondent is collusive suit and prayed for dismissal of E.A.No.369 of 2009.
7. Before the learned Judge, the first respondent examined herself as P.W.1 and marked 13 documents as Exs.P1 to P13. No oral and documentary evidence was let in on behalf of the petitioner and respondents 2 to 4.
8. At the time when E.A.No.369 of 2009 was taken up for final hearing, a preliminary decree as well as final decree had been passed exparte in O.S.No.253 of 2007 by A
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