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2019 Supreme(Mad) 1537
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.SATHISH KUMAR, J.
V. Krishnamoorthy - Appellant
Versus
Radhabai Ammal – Respondent
C.R.P.(NPD).Nos.1128 of 2006 and 4003 of 2007, M.P.Nos.1 and 2 of 2007 in C.R.P.(NPD) No.4003 of 2007
Decided on : 11-03-2019
Advocate Appeared:
For the Appellant : Mr. K. Venkatasubban for M/s. Sarvabhuman Associates
For the Respondents: Mr.N. Nithyanandam, Mr.K. Goviganesan, Adv.
Headnote:
Civil Procedure Code - Section 151 - Possession of immovable properties - Seeking declaration of Title and Permanent Injunction – Jurisdiction - Even after the property was sold during the pendency of suit filed an application to set aside Ex-parte Decree which was dismissed by Court and reached finality - Thereafter, Execution Application filed by Decree Holder viz., Revision Petitioner for sale of property to realize decree amount in above Execution Petition was transmitted to Court and re-numbered - Since there was no bidder decree holder become a successful bidder in auction conducted by Court with permission of the Court on - In meanwhile Pendent late Purchaser – Held, As far as the is concerned it is contention of Revision Petitioner that respondent during pendency of proceedings cut and removed trees in the suit property - Therefore, he sought to direction to deposit sale proceeds it was opposed by respondent lies pendent purchaser. The executing court dismissed the application on the ground that at the relevant point of time sale was not confirmed. Besides it also come to the conclusion that he has not raised cesarean trees in the suit property - He purchased land properties alone - Executing Court also considered evidence that himself not aware of nature of the trees what was the exact no of trees cut and removed from property, has come to the conclusion that Revision Petitioner has not proved factum of cutting and removal of trees - Since he has not examined any independent witnesses, traders or timber merchants to prove allegation Executing Court rightly negative his claim for deposit of the alleged sale proceeds, in absence of any evidence to show that trees worth about and removed from the property - Merely on basis of liberty granted by this Court in earlier Revision Petition to move before trial Court to work out his remedy, in my view that cannot be a ground to order application. Therefore this Court does not find any infirmity in order passed by the Executing Court in dismissing application - Accordingly, dismissed - His right also negative by Courts - Hence lies pendent transferee cannot claim any right based on such transfer - Therefore order of executing court dismissing application is erroneous and same is set aside - Accordingly allowed - Executing Court shall pass an order for delivery of possession within two months from date of receipt of copy this order - Petition dismissed
ORDER :
The case has got chequered history. Civil Revision Petition (NPD) No.1128 of 2006 has been filed against the order of Executing Court dismissing the Execution Petition filed under Section 151 of C.P.C. to direct the Respondent to deposit Rs.2,50,000/- into Court within time granted by court and for other reliefs. Civil Revision Petition (NPD) No.4003 of 2007 has been filed against the order of Executing Court dismissing the Execution Petition filed under Order 21 Rule 95 of C.P.C. for delivery of Possession of the immovable properties from the Judgment Debtor through the process of law. Since the issues and the parties in both the Revision Petitions are same, this common order is rendered.
2. The facts which are necessary to decide the Civil Revision Petitions are as follows:
2.(a) On 07.04.1987 one Mr.Subbiya Reddiar filed suit in O.S.No.42 of 1987 before the Sub-Court Chengalpet against Radhabhai Ammal, the Respondent in C.R.P.(NPD) No.4003 of 2007, for recovery of Rs.23,892.50 with interest at 12% on Rs.15,500/- with a charge over the suit property. During the pendency of the suit, the said Mr.Subbiya Reddiar died. The Revision Petitioner Mr.V.Krishnamoorthy was impleaded as a legal representative of the said Mr.Subbiya Reddiar on the basis of the Will executed by Mr.Subbiya Reddiar. Thereafter, the suit was decreed ex-parte against Mrs.Radhabai Ammal with a charge decree over the suit property on 14.03.1990. Mrs.Radhabai Ammal filed an Application to set aside the ex-parte decree on 09.09.1992. However, above Application was dismissed. No Appeal or Revision was filed and the Decree dated 14.03.1990 has become final. Before that one Balasubramanian who is the Respondent in C.R.P.(NPD) No.1128 of 2006 has purchased the property during the pendency of the suit from Mrs.Radhabai Ammal on 13.07.1987 and 17.07.1987. His purchase is during the pendency of suit for the charge decree in respect of the suit property.
2.(b) Even after the property was sold during the pendency of the suit Mrs.Radhabai Ammal filed an application to set aside the Ex-parte Decree on 09.09.1992 which was dismissed by the Court and reached finality. Thereafter, Execution Application filed by the Decree Holder viz., the Revision Petitioner for sale of property to realise the decree amount in E.P.No.55 of 1990. The above Execution Petition was transmitted to Madhurantagam Munsif Court and re-numbered as E.P.No.126 of 1996. Since there was no bidder, the decree holder become a successful bidder in auction conducted by the Court with the permission of the Court on 17.3.1997. In the meanwhile the Pendente lite Purchaser viz., Mr.Balasubramaniam filed a suit in O.S.No.61 of 1999 seeking declaration of Title and Permanent Injunction. The above suit was decreed by the trial Court on 06.08.2007.
2(c) Thereafter, in appeal in A.S.No.56 of 2007 above decree and judgment was set aside on 29.12.2008 by the Appellate Court and reached finality. No Second Appeal whatsoever filed from the year 2008. Prior to that the Revision Petitioner has filed E.A.No.430 of 1998 in E.P.No.126 of 1996 to appoint Advocate Commissioner to cut the casurina trees and auction the same and deposit the sale proceeds in court, which was allowed by the Executing Court on 19.01.1999. As against which Pendente Lite Purchaser Mr.Balasubramaniam filed C.R.P.No.2099 of 2000 before this Court. Similarly, Revision Petitioner also filed C.R.P.No.439 of 2000 as against the interim order passed in the suit filed by the Pendente Lite Purchaser. C.R.P.No.2099 of 2000 filed challenging the appointment of Commissioner to auction the casurina trees. This Court allowed the Civil Revision Petition filed by the Revision Petitioner challenging the interim order granted in favour of the Purchaser Pendente Lite and the Civil Revision Petition filed by the present Revision Petitioner is also closed granting liberty to the Revision Petitioner to move the Court below for appropriate orders. While dismissing the abov
