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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
K.S. Ravi - Petitioner
Vs.
K.P. Manickam & Ors. - Respondents
C.R.P.(NPD) Nos. 1483 and 1484 of 2004
Decided On : 26-06-2018
Code of Civil Procedure,1908 - Sections 47 and 151 - Order 21 Rule 101, 98 , 97 , 100 and 102 – Property for sale - Sale Deed - Promissory Note - Challenged – Decreed - Petitioner drew attention of this Court to Paragraphs 4 and 5 of petition filed by 1st respondent in E.A.No. - A reading of this clearly shows that 1st respondent herein is a pendente lite purchaser and therefore, in view of provisions of Order 21 Rule 102 of Code of Civil Procedure, a transferee pending the litigation is clearly barred from offering any resistance or obstruction to execution of a decree - All further proceedings in E.P.No. till disposal of E.P.No.6 of filed by him for bringing property for sale - He also pointed out that on date when Stay Petition was filed, properties had not been brought for sale and therefore 1st respondent had full knowledge about decree in favour of Revision Petitioner and pendency of E.P.No., when he purchased property in auction sale - 1st respondent is not only a pendente lite purchaser but also not a bonafide purchaser for value, he having purchased property with full knowledge of decree for specific performance obtained by revision petitioner and Execution Petition filed by revision petitioner for having Sale Deed executed in his favour – Held, learned Subordinate Judge has proceeded to hold that decree obtained by revision petitioner in O.S.No. is only to thwart and defeat decree obtained by 1st respondent in O.S.N.- This finding is not only fallacious but is perverse - Revision petitioner, who had filed the suit earlier, has immediately obtained an order of attachment much prior to the filing of suit by 1st respondent - Exercise of powers under Section 47 of Code is microscopic and lies in a very narrow inspection hold - Thus, it is plain that the Executing Court can allow objection under Section 47 of Code to executability of decree, if it is found that same is void ab initio and a nullity, apart from ground that decree is not capable of execution under law either because same was passed in ignorance of such a provisions of law or law was promulgated making a decree inexecutable after its passing - observations of the learned Subordinate Judge, regarding claim of revision petitioners qua claim of 1st respondent amounts to revisiting claim, which has already been decided and decreed by a Competent Court - Learned Subordinate Judge has not applied his mind to scope of the legal provisions - Civil Revision Petitions are allowed on costs.
Since the issue involved in both the revision petitions are one and the same as the order challenged in CRP.(NPD).No.1484 of 2004 is consequent to the order impugned in CRP.(NPD).No.1483 of 2004, a Common Order is pronounced for both the revision petitions. The parties are referred in the array in which they are described in C.R.P.(NPD).No.1483 of 2004.
2. The decree holder in O.S.No.95 of 2000 on the file of the learned Sub Judge, Bhavani, is the revision petitioner in both the Civil Revision Petitions. C.R.P.No.1483 of 2004 arises against the order passed in E.A.No.46 of 2002 in E.P.No.14 of 2001 by the learned Sub Judge, Bhavani, wherein the application filed by the respondent under Order 21 Rule 101 and Sections 47 and 151 of the Code of Civil Procedure was allowed. C.R.P.No.1484 of 2004 arises out of the consequential dismissal order passed in E.P.No.14 of 2001 filed by the revision petitioner for executing the decree for specific performance obtained by him in O.S.No.95 of 2000.
3. A brief synopsis of the various stages of the two suits (O.S.No.95 of 2000 filed by the revision petitioner and O.S.No.122 of 2000 filed by the 1st respondent) is narrated herein below. The defendant in both the suits is the 2nd respondent Muthusamy.
04.02.1998
Muthusamy, the defendant executed a Promissory Note in favour of the 1st respondent.
20.09.1999
Agreement of sale executed by the said Muthusamy in favour of the revision petitioner.
02.05.2000
Suit O.S.95 of 2000 filed by the revision petitioner for Specific performance on the file of the Sub Court, Bhavani. On the very same day, the revision petitioner had also obtained an order of attachment of the properties of the said Muthusamy before the Judgment.
04.07.2000
The 1st respondent filed O.S.No.122 of 2000 on the file of the Sub Court, Bhavani, for recovery of amounts under the Promissory Note dated 04.02.1998.
11.09.2000
Suit O.S.No.95 of 2000 decreed in favour of the revision petitioner.
09.11.2000
1st Respondent obtained Interim Orders of attachment before Judgment in his suit O.S.No.122 of 2000.
20.11.2000
The suit O.S.No.122 of 2000 decreed in favour of the 1st respondent.
30.01.2001
E.P.No.6 of 2001 filed by the 1st respondent for bringing the properties to sale.
26.02.2001
The revision petitioner filed E.P.14 of 2001 for execution of the Sale Deed in his favour.
19.06.2001
The 1st respondent filed E.A.150 of 2001 in E.P.No.14 of 2001 to stay E.P.No.14 of 2001 till the disposal of the 1st respondent's execution petition, E.P.No.6 of 2001.
20.09.2001
Property brought to sale in the Court auction and the 1st respondent purchased it.
23.11.2001
Sale confirmed in favour of the 1st respondent.
14.12.2001
Delivery of the property given to the 1st respondent pursuant to the orders in E.A.No.304 of 2001.
20.12.2001
Delivery is recorded.
14.03.2002
The 1st respondent files E.A.No.46 of 2002 in E.P.No.14 of 2001 under Order 21 Rule 101 and Sections 47 and 151 of the Code of Civil Procedure for declaration that the decree passed in O.S.No.95 of 2000 is null and void ab initio and does not effect the 1st respondent's right and title.
10.09.2003
E.A.No.46 of 2002 allowed.
10.09.2003
E.P.No.14 of 2001 is dismissed in view of the order in E.A.No.46 of 2002.
It is the last two orders which are now the subject matter of the revisions.
4. The counsel for the petitioner submitted his arguments broadly under three heads:
“(1) that E.A.No.46 of 2001 is not maintainable in view of the provisions of Order 21 Rule 102, the respondent being a pendente lite purchaser.
(2) that the scope of intervention under Section 47 of the Code of Civil Procedure is very narrow.
(3) Executing Court can
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