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2017 Supreme(Mad) 3909
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
P.Balasubramanian - Appellant
Versus
Kaliammal and Ors. - Respondents
A.S.No.57 of 2013 and CRP (NPD) No.2676 of 2011
Decided on : 13-10-2017
Advocate Appeared:
For the Appellant : Mr.K.Selvaraj
For the Respondent: Mrs.Hema Sampath, Senior Counsel, Mr.Gunalan, Mr.P.Valliappan
Headnote:
Code of Civil Procedure, 1908 – Section 47, Order 21 Rule 97, Order 21 Rule 95, Order 41 Rule 33 – Exparte decree of specific performance – Sale Deed – An exparte decree was passed by the learned Subordinate Judge, Udumalpet, in O.S.No.66 of 2007. Pursuant to the exparte decree of specific performance, the learned Subordinate Judge, Udumalpet has executed the sale deed in favour of Mr.Balasubramanian, decree holder in O.S. – Pursuant to the exparte decree, execution petition in E.P.No.36/2008 was filed by Mr.Balasubramanian and the Subordinate Court, Udumalpet has executed a sale deed pursuant to the specific performance suit on 16.12.2008. – Held, It is very clear that Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy who are the vendors of the appellant/petitioner have played fraud for non disclosure of fact before the Court. – But, that will not enure any right to the appellant/petitioner. – Further, for that reason, the appellant/petitioner cannot be gifted with the equitable relief at the cost of Ms.Kaliammal who even otherwise have right in the suit property since, her father Mr.Appiya Gounder has died intestate. – It could be a just relief for the appellant/petitioner to be compensated by his vendors viz., Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy. In view of the fact that the contract which he has entered with his vendors have become unenforceable on the date of filing of the suit and decree. – Hence, this Court modify the relief by invoking its power under Order 41 Rule 33 C.P.C., award compensation of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only), to the vendors payable by Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy within a period of four weeks from today, which will be just and equitable relief for the appellant/petitioner. – On payment of this money, the sale deed Doc.No.4027/2008 at Sub-Registrar Office, Kaniyur, and dated 16.12.2008, executed by the Court pursuant to the decree passed in O.S.No.66 of 2007 shall stand cancelled. – Appeal Suit Disposed of
1. The above said appeal and revision arising out of common facts and order passed by the trial Court. Hence, the common judgment.
2. The brief facts of the case is that, one Mr.Appia Gounder died on 10.02.1986 leaving behind two sons, one daughter and some immovable properties for them to litigate. On 14.10.1988, his two sons Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy effected partition among themselves excluding their sister Ms.Kaliammal. On 22.02.2001, Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy have also entered into an agreement with one Mr.Balasubramanian, the appellant in A.S.No.57 of 2013 and petitioner in CRP No.2676 of 2011 to sell 13.86 acres in S.No.299/2, Miwadi Village, Udumalpet Taluk, which is the subject matter of the present Appeal and Revision. The value of the property was fixed at Rs.4,95,495/- and a sum of Rs.50,495/- was given as advance by the appellant/petitioner. The time to complete the contract was earlier fixed as three months which was likely to explore on 21.05.2001. Before expiry, the time for completion of contract was extended upto 20.10.2007.
3. In the mean while, Ms.Kaliammal, daughter of Mr.Appia Gounder has filed a suit for partition against her brothers Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy in O.S.No.137/2001 on the file of learned District Munsif, Udumalpet. The suit was filed on 26.04.2001. This partition suit was contested for merely 5 years and subsequently, a compromise decree was passed on 05.01.2006, by consent of the parties. Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy who were defendants in the said suit had not considered their agreement with Mr.Balasubramanian but, conveniently, conceded their right to Ms.Kaliammal in respect of the property which they have also entered into agreement for sale with Mr.Balasubramanian.
4. On 25.10.2007, Mr.Balasubramanian has instituted a suit for specific performance based on the agreement with Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy, dated 22.02.2001, in respect of 13.86 acres of land at Miwadi village at S.No.299/2, which has already been conceded by them to their sister Ms.Kaliammal, in the partition suit.
5. In the said suit, both Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy, remained exparte. Hence, an exparte decree was passed on 22.02.2008 by the learned Subordinate Judge, Udumalpet, in O.S.No.66 of 2007. Pursuant to the exparte decree of specific performance, the learned Subordinate Judge, Udumalpet has executed the sale deed in favour of Mr.Balasubramanian, decree holder in O.S.No.66 of 2007 on 16.12.2008. Pursuant to the exparte decree, execution petition in E.P.No.36/2008 was filed by Mr.Balasubramanian and the Subordinate Court, Udumalpet has executed a sale deed pursuant to the specific performance suit on 16.12.2008.
6. In the mean while, Ms.Kaliammal who had been allotted the very same land through the compromise decree in her partition suit has filed O.S.No.436 of 2006 for declaration against her brothers Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy for declaration that she is in title holder and in enjoyment of the property. On 06.11.2007, a decree to that effect was also passed. As stated earlier, in the specific performance suit, Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy had failed to contest the suit and they have not brought to the notice of the Court about the compromise decree passed in the partition suit or the exparte decree passed in the declaration suit.
7. Under these circumstances, Mr.Balasubramanian, the decree holder in O.S.No.66/2007, has filed E.A.No.215 of 2009 under Order 21 Rule 95 praying for delivery of possession of the suit property. In the said application, Ms.Kaliammal has filed an Obstruction Petition under Section 47 of the Code of Civil Procedure. This application filed under Order 21 Rule 97, was taken together for consideration by the trial Court.
8. After examining the witnesses as well as the exhibits marked on behalf of the parties, the Execution Court has allowed the application filed by Ms.Kaliammal and dismissed the applicati
