IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on : 02.08.2018

Judgment Pronounced on : 09.11.2018

CORAM: THE HONOURABLE Mr.JUSTICE N.SESHASAYEE

C.M.S.A.No.16 of 2018

and CMP.No.12748 of 2018

1. Rajendran

2. M.Murugan

... Appellants

Vs

Mohanambal

... Respondent

Prayer :- Civil Miscellaneous Second Appeal filed under

Section 100 read with Order 21 Rule 103 of CPC, against the

order and decretal Order dated 19.06.2018 passed in

C.M.A.No.12 of 2017 on the file of the Subordinate Judge,

Kanchipuram in E.A.No.52 of 2013 in E.P.No.24 of 2009 in

O.S.No.71 of 1976 on the file of the District Munsif cum

Judicial Magistrate, Sriperumbudur.

For Appellants

: Mr.V.Raghavachari

For Respondent

: Mr.R.Balachandran

JUDGMENT

The obstructors before the Execution Court in E.A.52 of 2013

in E.P.24 of 2009, having lost successively both before the

Execution Court and the first appellate Court have come

forward with the present appeal.

2. There then exists a set of facts that provides the

setting for the appellants to approach the Execution Court.

They may now be introduced:

●

The property involved in this appeal is a specific plot

representing ¼ share out of an extent of 81 cents in

S.F.No:43 Venkatapuram village, Sriperampudhur Taluk.

●

The aforesaid property in S.F.No:43 along with other

properties originally belonged to a certain Subramania

Gramani. He had two daughters namely Venganayakiammal

and Muthunayakiammal. Venganayakiammal had two

daughters Kamalammal and Mohanambal.

https://hcservices.ecourts.gov.in/hcservices/

●

Some time in 1958, Subramania Gramani executed a

settlement deed in favour of his grand daughters

Kamalammal and Mohanambal. On 07.12.1962, the minor's

mother Venganayakiammal along with Kamalammal and her

mother Kanniammal had executed a sale deed in favour of

Muthunayakiammal referred to above.

●

The appellants' father was Mohalingam alias Rajabathar

(hereinafter would be referred to as Mohanalingam). He

along with one Poongavana Muthaliar was said to have

been a cultivating tenant of the property in S.F.No:43

under Muthunayakiammal.

●

While so, Venganayakiammal along with her two daughters

Kamalammal and Mohanambal, who, as earlier stated, had

sold the entire suit properties to Muthunayagiammal,

had instituted a suit in O.S.71 of 1976, (the decree

passed in which has resulted in the present appeal

through the Execution route) against Muthunayakiammal

and her eight children for a declaration that the sale

deed dated 07.12.1962, which the former had executed

was sham and nominal, and hence, void. In the suit,

the property in S.F.No:43 was scheduled as Item 6 in

the I Schedule.

●

This suit was laid on 20.04.1971 initially before the

District Munsif Court, Poonamalle. On 23.08.1975, it

was returned for being presented before proper Court

and on 28.08.1975, it was presented before the Sub-

Court, Chengalpattu, wherein, it was taken on file in

O.S.No.71 of 1976.

●

Be that as it may, a couple of months prior to the

institution

of

this

suit,

on

23.01.1971,

Muthunayakiammal and appellants' father Mohanalingam

had entered into an agreement of sale for the sale of

the property comprised in S.F.No:43, measuring 81

cents. And after the institution of the suit, when it

was still pending before the District Munsiff Court,

Poonamallee, the sale agreement fructified into a sale,

when on 05-08-1976, Mohanalingam purchased the

aforesaid property in S.F.No:43 in entirety from

Muthunayakiammal in the names of his two sons, the

appellants herein.

●

On 10-04-1978, O.S.No.71 of 1976 was dismissed by the

trial Court. The plaintiffs had preferred A.S.No.275

of 1978 before the District Court, Chengalpattu, and on

08.04.1981, the First Appellate Court dismissed the

appeal. A further appeal was preferred to this court

in S.A.No.1512 o