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2019 Supreme(Mad) 2829
IN THE HIGH COURT OF MADRAS
C. SARAVANAN, J.
G.K. Suganya and Ors. - Appellant
Versus
N.P. Sekar and Ors. - Respondent
C.R.P. (NPD) No. 1260 of 2014 and M.P. No. 1 of 2014
Decided On : 04-07-2019
Advocate Appeared:
For the Appellant :P. Valliappan, Advocate
For the Respondent:S. Kaithamalai Kumaran, Advocate
Headnote:
Constitution Of India,1950 - Article 59 - Civil Procedure Code,1908 - Section 47 - Order 21 - Rule 101 - Advance amount - claim right over property - Plaintiff had earlier filed before Subordinate Court Erode against Respondent/Defendant who was sole Defendant in Suit said Suit was filed for Specific Performance Agreement and to direct Respondent/Defendant to execute Sale Deed in favour of Respondent/Plaintiff after receiving balance Sale consideration pursuant to an Agreement for Sale executed between them - Though Respondent/Sole Defendant entered appearance through Counsel before Subordinate Court Erode he chose to remain absent and was therefore set ex parte - Suit was therefore decreed ex parte - It was not appealed these circumstances Respondent/Plaintiff before Additional Subordinate Court Erode to execute a Sale Deed- In said proceeding Respondent/Sole Defendant objected but later remained absent Court executed Sale Deed in favour Respondent/Plaintiff - Thereafter First Respondent – Held, Case registered Sale Agreement has not been executed by Respondent as or Family head - Therefore Petitioners have valid point which deserves to be addressed - Merely because Voter ID shows Petitioner was also residing with Respondent by itself would bind not Petitioners - Whether sale was made for the benefit of Petitioners or not who where then minors is to be determined Suit shows that Respondent may not have acted diligently. The fact that Agreement also does not consider the implication of the rights flowing from a Partition Deed is factor which cannot be ignored - In this case admittedly Respondent has not taken delivery and possession still with Petitioners and presumably with Respondent - Therefore no prejudice or harm would be caused if case is remanded back to Additional Subordinate Court Erode for determination rights of parties afresh subject payment of Costs Respondent Petitioners shall pay sum Cost to Respondent/Plaintiff within a period of four weeks from date of receipt copy of this Order aforesaid amount shall be deposited credit file of Subordinate Court Erode - Subordinate Court Erode shall thereafter pass a fresh order merits keeping observations contained this Order - This exercise shall be carried out by Subordinate Court Erode within a period of nine months from date of receipt of a copy this Order above Civil Revision Petition stands disposed in terms of the above observations - No Costs Consequently connected Miscellaneous Petition is also closed - Petition disposed
JUDGMENT :
C. SARAVANAN, J.
1. The present Civil Revision Petition has been filed by the Petitioners, who are not parties to the Original proceedings in O.S. No. 679 of 1996 before the Subordinate Court, Erode.
2. The Petitioners are aggrieved by the impugned Fair and Decretal Order, dated 3.7.2012 passed by the I Additional Subordinate Judge's Court at Erode in E.A. No. 331 of 2008 in E.P. No. 282 of 2006 in O.S. No. 679 of 1996.
3. By the said Order, the Lower Court has dismissed the Application filed by the Petitioners herein under Section 47 of the Civil Procedure Code to set aside Sale Deed, dated 27.6.2002 in respect of Petition property and to record their objection in taking delivery of the said property.
4. The 1st Respondent/Plaintiff had earlier filed O.S. No. 679 of 1996 before the Subordinate Court, Erode against the 2nd Respondent/Defendant, who was the sole Defendant in the Suit.
5. The said Suit was filed for Specific Performance of Agreement and to direct the 2nd Respondent/Defendant to execute a Sale Deed in favour of the 1st Respondent/Plaintiff after receiving the balance Sale consideration pursuant to an Agreement for Sale, dated 11.12.1992 executed between them.
6. Though, the 2nd Respondent/Sole Defendant entered appearance through a Counsel before the Subordinate Court, Erode, he chose to remain absent and was therefore set ex parte. The Suit was therefore decreed ex parte on 30.3.1999. It was not appealed.
7. Under these circumstances, the 1st Respondent/Plaintiff filed E.P. No. 296 of 1999 before the Additional Subordinate Court, Erode to execute a Sale Deed. In the said proceeding, the 2nd Respondent/Sole Defendant objected but later remained absent. On 27.6.2002, the Court executed Sale Deed in favour of the 1st Respondent/Plaintiff.
8. Thereafter, the First Respondent/Plaintiff (Decree-holder) filed E.P. No. 282 of 2006 for delivery of possession of the property.
9. It is in this proceeding, the Petitioners herein filed Application under Section 47 of the Civil Procedure Code vide E.A. No. 331 of 2008 to set aside sale executed by the Additional Sub-Court, Erode on 27.6.2002 and to record their objection to deliver the property.
10. The Petitioners are the children of the 2nd Respondent/Defendant. At the time of the Agreement and at the time of execution of the Sale Deed they were minor. They claim right over the property in terms of the Partition Deed, dated 14.7.1990 between the 2nd Respondent and his father. They claim it to be Ancestral property.
11. The Sale Agreement, dated 11.12.1992 in respect of the property was signed between the Respondents for the sale of property in S. No. 638/1 (Hectare 2.98.0-8.38) Acres 2.32 for a total Sale consideration of Rs. 1,10,000 and as per the recital a sum of Rs. 1,00,000 has been paid as advance to 2nd Respondent by the 1st Respondent.
12. Further as per the recital only a sum of Rs. 10,000 was the balance to be paid within one year from the date of Agreement and in case 'of failure of make such payment within the agreed time, the 1st Respondent would forfeit the Advance amount of Rs. 1,00,000 paid and the liability under the Agreement would stand discharged.
13. It was also agreed that the 1st Respondent can approach the Court for appropriate remedy in case the 2nd Respondent failed to execute the Sale Deed if the 1st Respondent was ready to pay the balance Sale consideration.
14. The 1st Respondent had also prayed for an alternate relief to direct the 2nd Respondent to repay an amount of Rs. 1,71,850 paid as Advance together with Interest at 18% per annum from the date of the Suit till the date of realisation.
15. The ex parte Judgment, dated 30.3.1999 of the Court bears no discussion on facts and issue. There is total non application of mind.
16. In the said proceeding, the Petitioners submitted that they came to know about the Decree, dated 30.3.1999 only during the first week of August 2006 and that the property in question was an Ancestral property pursuant to Parti
