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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. Bhavani Subbaroyan, J.
S. Vasanthi & Another – Petitioners
Versus
K. Munuswamy & Another – Respondents
C.R.P.(NPD). No. 835 of 2020 & C.M.P. Nos. 4433 & 4434 of 2020
Decided On : 17-03-2021
Constitution of India, 1950 – Article 227 – Code of Civil Procedure, 1908 – Order 21 Rule 97 and 101, Section 151 – Execution of Sale Deed – Civil Revision Petition has been filed against the fair and decreetal order passed in E.A. in E.P. in O.S. on the file of Subordinate Court, Dharmapuri. – Suit was filed by the 1st respondent/plaintiff to execute a sale deed in favour of him by the 2nd respondent/defendant and in case of failure of the defendant to execute the sale deed in favour of the plaintiff, to execute the same through the Court on behalf of the defendant. – Defendant was set exparte before the Court below and the Court below by decree and order had allowed the suit in favour of the 1st respondent/plaintiff as prayed for – The decree holder had filed R.E.P. praying for execution of the decree and judgment – When the execution petition was pending, an obstruction petition in R.E.A. was filed by the petitioners herein under Order 21 Rule 97 stating that the suit schedule property originally belonged to their father Narasimhan and the same was settled in favour of them by way of a registered Settlement Deed in Doc.
Findings of Court : Perusal of the pleadings in R.E.A. filed by the present revision petitioners, the respondents herein who claims to be a Judgment debtor and decree holder are exactly strangers to the property. – However, to grab the suit property behind the back of the revision petitioners, a pseudo suit has been filed that as if there was a dispute between the 1st and 2nd respondents and the 1st respondent had obtained a decree against the 2nd respondent who was set exparte in the suit as well as in the E.P. would clearly prove that the way in which the execution petition is also withdrawn when the obstruction petition was filed by the revision petitioners herein. – Court below ought not to have permitted the withdrawal of the execution petition as it is clear from the provision of Order 21 Rule 97 that the Trial Court on receipt of the petition from the obstructor under Order 21 Rule 97 has to deal with the proceeding as per provisions of Order 21 Rule 97 also which would remain as sole remedy to the concerned parties to have the grievance once for all finally resolved in the execution proceeding itself. – That apart, Order 21 Rule 97 CPC clearly envisages that any person even including the Judgment debtor irrespective whether he claims derivative title from the Judgment debtor or set up his own right, title or interest, irrespective of the Judgment debtor and he can resist the execution of the decree. – Court is empowered to conduct an enquiry whether the obstruction petition filed by the said petitioner was legal or not. – Even third party not connected to the suit proceedings can initiate a petition under Order 21 Rule 97 CPC. – Court is of the view that the E.P. petition ought not to have been permitted to be withdrawn. – Permission accorded to withdraw R.E.P. consequently makes R.E.A. infructuous, thereby the decree obtained by the 1st respondent herein as against the 2nd respondent with regard to the suit property which is owned by the revision petitioners continues to be there. – Unless the petition filed by the revision petitioners under Order 21 Rule 97 fully determined, this dispute cannot be set right. – Court is of the view that the order passed by the Sub Court in R.E.A. in R.E.P. has to be set aside along with the order made in R.E.P. – Orders passed by the Sub Court, Dharmapuri in R.E.P. are set aside and it is made clear that the Sub Court would decide the application filed by the Civil Revision Petitioners on merits without being influenced by this order. – It is also made clear that the application should be decided as expeditiously as possible as the suit is of the year 2014.
Result : Civil Revision Petition Allowed
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 01.12.2018 passed by the Subordinate Court, Dharmapuri in E.A.No.50 of 2016 in E.P.No.7 of 2016 in O.S.No.261 of 2014.)
1. This Civil Revision Petition has been filed against the fair and decreetal order dated 01.12.2018 passed in E.A.No.50 of 2016 in E.P.No.7 of 2016 in O.S.No.261 of 2014 on the file of Subordinate Court, Dharmapuri.
2. The suit was filed by the 1st respondent/plaintiff to execute a sale deed in favour of him by the 2nd respondent/defendant and in case of failure of the defendant to execute the sale deed in favour of the plaintiff, to execute the same through the Court on behalf of the defendant.
3. The defendant was set exparte before the Court below and the Court below by decree and order dated 13.01.2015 had allowed the suit in favour of the 1st respondent/plaintiff as prayed for. The decree holder had filed R.E.P.No.7 of 2016 praying for execution of the decree and judgment. When the execution petition was pending, an obstruction petition in R.E.A.No.50 of 2016 was filed by the petitioners herein under Order 21 Rule 97 stating that the suit schedule property originally belonged to their father Narasimhan and the same was settled in favour of them by way of a registered Settlement Deed dated 28.08.2014 in Doc.No.3229 of 2014.
4. The Revision Petitioners state that they are the joint owners of the properties in S.No.21/2C measuring Acre 0.13 ½ cents and S.No.21/1D measuring Acre 1.12 ½ cents as per Patta No.745 and in S.No.21/1C measuring Acre 1.07 ½ cents as per Patta No.1996 totally admeasuring Acre 2.33 ½ cents situated in Unguranahalli Village, Dharmapuri Taluk, Dharmapuri District. The 1st respondent/plaintiff had filed O.S.No.261 of 2014 for specific performance against the 2nd respondent/defendant based on the bogus Sale Agreement falsely created among themselves in a collusive manner for the purpose of filing a suit to grab a portion of the petitioners’ property. Since the 2nd respondent did not appear before the Court, an exparte order was obtained behind the petitioners. Thereafter, the 1st respondent had filed Execution Petition in E.P.No.7 of 2016 against the 2nd respondent and the 2nd respondent did not appear before the Court which led to execute a sale deed in favour of the 1st respondent/plaintiff by the Court Officer on 28.10. 2015 which was registered as Doc.No.3785 of 2015 on the file of Joint-II Sub Registrar, Dharmapuri. Based on the sale deed, an Agreement for sale was entered into between the 1st respondent and one Govindasami on 30.03.2016 which was registered as Doc.No.1246 of 2016 at the same office. The petitioners herein came to know about the same only on 01.02.2016 and immediately they filed a petition in R.E.A.No.50 of 2016 in the above R.E.P.No.7 of 2016 under Order 21 Rule 97 and 101 read with Section 151 of CPC before the Sub Court, Dharmapuri. Obviously, the 1st respondent had withdrawn the said E.P proceedings and in view of the same the petitioners’ application in E.A.No.50 of 2016 was dismissed as withdrawn by the Execution Court on 01.12.2018 and the order of the Executing Court is perverse and against which they have filed this petition before this Court.
5. Heard the learned counsel for the petitioners and the learned counsel for the 1st respondent, and perused the materials available on record.
6. On perusal of the records, it is seen that the present case by the revision petitioners is that one Munuswamy filed O.S.No.261 of 2014 against one Rajkumar before the Sub Court, Dharmapuri, for specific performance by raising ground that the suit schedule property originally belonged to the said Rajkumar. The plaintiff Munuswamy, 1st respondent herein, had entered into an agreement with the said Rajkumar, 2nd respondent herein, for sale of suit schedule property for the agreed amount of Rs.1,05,000/- based on the written agreement da
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