Back
2018 Supreme(Mad) 1855
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Lagrave Jayaseeli - Petitioner
Versus
Trinite Modestine (deceased) & Others - Respondents
C.M.P. Nos. 908 to 910 of 2012 in S.A. No. 138 of 2003
Decided On : 25-09-2018
For the Petitioner:Chitra Sampath, Senior Counsel for P. Valliappan, Advocate.
For the Respondents:G. Masilamani, Senior Counsel for M/s. G.M. Mani Associates, Advocates.
Headnote:
Civil Procedure Code,1908 - Order XXII and I- Rule 10 and 10(2) - Petitions have been filed to condone the delay to set aside the abatement caused due to the death of the sole appellant, and to bring on record the petitioners as representatives in interest of the deceased sole appellant - Applications have been filed invoking the provisions on the ground that they have purchased portions of the suit property pending the proceedings from the deceased sole appellant - Affidavit filed in support of the petition, petitioners would contend that it was only , that they had come to know that the above Second Appeal had been dismissed - They would also contend that it was only on account of the collusion between respondents and deceased appellant that matter was allowed to be dismissed for default - Respondents have filed an elaborate counter affidavit wherein they have raised the objections to the instant petition - Before proceeding to extract the submissions on either side and discussing the issue on hand, namely whether the petitioners can step into the shoes of the deceased sole appellant invoking the provisions when they do not represent the interest in the entire property and when the Application is highly belated nearly 20 years after their purchase, it is necessary to briefly extract the dates and events preceeding the filing of these petitions – Held, Honourable Supreme Court was called upon to consider the correctness of the order of the Trial Court, Appellate Court and the High Court in allowing an Application filed by an Assignee from one of the parties to suit for partition to implead him as a party to the proceeding under Order XXII Rule 10 of C.P.C - In that case, a preliminary decree had been passed and there was an interim order of the Trial Court restraining all parties from alienating or otherwise transferring in any manner any part of the property involved in the suit. Despite this restraint order, the Applicant had purchased the property - Trial Court, the Additional District Judge and the High court allowed the impleadment - However the Honourable Supreme Court upset these orders and refused the impleadment - Basis on which the Honourable Supreme Court had arrived at this decision was that if an alienation in defiance of the restraint orders of the Court were let go it would defeat the ends of justice - Deceased appellant preventing the Court from passing an order of interim injunction on a false undertaking would clearly prove the petitioners and their vendor are guilty of a contumacious and clandestine conduct which disentitles them to be impleaded in the place of the deceased appellant - If the transaction was a bonafide transaction, petitioners would not have waited for 22 years to get impleaded - Further, the petitioners are purchasers of only a small extent of the larger extent of the suit property - In the light of the judgments of the Honourable Supreme Court and other judgments cited on the side of petitioners will not advance their case - In the result, these Civil Miscellaneous Petitions are dismissed.
1. The above Civil Miscellaneous Petitions have been filed to condone the delay of 909 days, to set aside the abatement caused due to the death of the sole appellant, on 13.01.2010 and to bring on record the petitioners as the representatives in interest of the deceased sole appellant Lagrave Jayaseeli. The applications have been filed invoking the provisions of Order XXII Rule 10 C.P.C on the ground that they have purchased portions of the suit property pending the proceedings from the deceased sole appellant.
Contentions of the Petitioners:
2. In the affidavit filed in support of the petition, the petitioners would contend that it was only during the 1st week of October 2012, that they had come to know that the above Second Appeal had been dismissed as abated on 29.09.2011. They would also contend that it was only on account of the collusion between the respondents and the deceased appellant that the matter was allowed to be dismissed for default.
3. They would further contend that the deceased appellant had sold the entire suit property to more than hundred persons including the petitioners herein and that they have been in possession of their respective portions ever since 1993. They have also contended that in view of the provisions of Order XXII Rule 10 of the C.P.C, there is a devolution of interest in their favour and they would step into the shoes of the deceased appellant and are therefore entitled to continue the legal proceedings. They would also submit that they were unaware about the proceedings pending before this Court and therefore there was delay in bringing them on record.
Objections of the Respondents:-
4. The respondents have filed an elaborate counter affidavit wherein they have raised the following objections to the instant petition:-
(a) That the sale in favour of the petitioners by the deceased appellant was in contravention of the statement that she had made to this Court in C.M.P No.7677 of 1990 in SA.No.219 of 1990, which was the original round of litigation prior to the remand.
(b) Such a statement had been made despite the fact that in the affidavit which was filed by the respondents for injunction, they had categorically stated that the deceased appellant was forming a layout of house sites in the suit property for selling it to the third parties.
(c) The deceased plaintiff had issued a public notice way back on 16.04.1990, informing the general public that the property does not belong to the deceased appellant.
(d) After the remand when the present Second Appeal was pending, the deceased appellant had taken out an application in C.M.P.No.1338 of 2003 for staying all further proceedings in the suit O.S.No.1324 of 1986 and in the affidavit dated 22.01.2003, she has stated that she is in possession of the property and the respondents were attempting to evict her out. Even at this stage, the deceased appellant had not brought to the notice of the Court the various alienations that she had done contrary to the assurance given by her, in her counter affidavit in C.M.P.No.7677 of 1990 in Second Appeal No.219 of 1990.
(e) The petitioners have moved this petition only after the respondents had moved execution proceedings in respect of the suit property though they were aware of the proceeding even on the date of their purchase.
(f) The petitioners are owners of only, an extent of 13,800 sq.ft out of a larger extent of 1,84,000 sq.ft.
(g) The petitioners were aware of the proceedings even when they purchased the property since the sale deed under which they had purchased the property contained details about the Second Appeal.
(h) That despite being aware of the pendency of the Second Appeal no steps whatsoever had been taken by the petitioners to implead themselves in the proceedings earlier.
(i) Since the petitioners have only purchased a very small portion of the entire suit property, they cannot seek
