Jayagopal Chetty (Died) (Venkatesan) vs Manickam

G. Rajasuria, J.—Inveighing the order dated 23.12.2009 passed by the learned Subordinate Judge, Attur in REP No. 28 of 2008 in O.S.

No. 153 of 2000, this civil revision petition is focussed.

Heard both sides.

A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:

Manickam, the respondent herein obtained a money decree as against one Jayagopal Chetty. Subsequently, the said Jayagopal Chetty died. REP

No. 28 of 2008 was filed by the respondent citing Venkatesan, the son of Jayagopal Chetty as the person representing the Judgment Debtor and

also as the person, who is liable to discharge the debt in view of fact that he inherited the properties described in the schedule of the E.P.

Whereupon, counter was filed by the said Venkatesan, the revision petitioner herein contending that he had not inherited the properties of the

deceased Jayagopal Chetty. Whereas Jayagopal Chetty during his life time executed a gift settlement deed dated 25.06.1999 (only during the

revisional stage, the photocopy of the settlement deed is shown by the learned Counsel for the revision petitioner) donating the properties

described in the schedule to the E.P in favour of the revision petitioner''s son Naresh. No oral or documentary evidence was adduced before the

Executing Court. After hearing both sides, the lower court ordered sale of the property described in the schedule of the EP on the ground that the

property was already attached. In Column No. 9 of the E.P, it is found specified that the property was already attached, presumably during the

pendency of the suit.

Being aggrieved by and dissatisfied with the said order of the lower court, this revision has been filed on various grounds, the gist and kernel of

them would run thus:

The lower court was not justified in simply ordering sale without directing the decree holder to implead the actual settlee, viz., Naresh as one of the

parties, in view of the fact that the revision petitioner herein is in no way, as of now, concerned with the property. The order passed in the

execution proceedings suffers from illegality and impropriety.

Placing reliance on the grounds of revision, the learned Counsel for the revision petitioner would develop his argument to the effect that it is the

duty of the executing court to see that as per Section 50 of the Code of Civil Procedure, the legal heir who stepped into the shoes of the deceased,

actually inherited the property of the deceased, once the revision petitioner herein submitted before the court that even though he happened to be

the son, he has not inherited the property of the Judgment Debtor; Jayagopal Chetty, during his life time itself and that too, even before the

institution of the suit by the decree holder settled the property in favour of Naresh and that therefore the court should not have simply ordered for

sale.

Whereas the learned Counsel for the decree holder would submit that the counter is vague as vagueness could be and nothing is found spelt out

about the interest of the said Naresh. No document was produced. Neither the court nor the decree holder is expected to take the versions in the

counter for gospel truth and act upon it. If at all, the revision petitioner was sincere in his representation to the court, he ought to have filed the

relevant document so as to make the court to arrive at a conclusion.

The learned Counsel for the decree holder also would submit that even during the life of Jayagopal Chetty, the property was attached and in

such a case, the attachment is binding on the legal heirs including the alleged settlee.

Accordingly, he prays for the dismissal of the revision.

The point for consideration is as to whether there is any illegality or impropriety on the part of the court in passing orders without having before

the court the alleged settlee, viz., Naresh?

The narration of facts supra would unambiguously and unequivocally, highlight and spotlight the fact that even during the life time of Jayagopal

Chetty, the property was attached and that he did not take action against it. The revision petitioner herein has not chosen to place any document

before the lower court to act accordingly.

I recollect and call up the maxim Vigilantibus et non dormientibus jura subveniunt - The laws aid those who are vigilant, not those who sleep

upon their rights. The interested party should take appropriate action and it is not something unknown in law. The real owners are as per

procedural law coming before the court and filing appropriate application to get themselves impleaded and they could resist the execution process

by filing appropriate documents. Here the revision petitioner poses as though he is totally unconnected with the property, however he has chosen

to file this revision.

I am at a loss to understand as to what actuated and propelled, geared and galvanised him to file this revision, when he is not at all interested in

the property. So, it is clear that on behalf of his son, he has chosen to file this revision, but without disclosing that he is intending to protect the

interest of his son. Instead of doing this, he could have very well instructed his son to initiate action, so as to prevent the property from being

brought for sale. But that has not been done.

As such, even though, I could see that there is no genuine intention on the part of the revision petitioner in prosecuting the matter and in fact he

intends to safeguard only his son''s interest, yet for the purpose of shortening the litigative process, I would like to direct the lower court to see that

at the instance of the decree holder, the said Naresh also is impleaded as one of the respondents in the E.P and on adducing oral and documentary

evidence and after hearing both sides shall, dispose of the matter. I would like to point out that the lower court is expected to dispose of the matter

after impleadment of Naresh in the proceedings, untrammelled and uninfluenced by any of the observations made by this Court in this revision.

Accordingly, the order of the lower court is set aside and the matter is remitted back to trial court. The decree holder shall take steps to

implead Naresh also as one of the respondents and even such other persons whom, the decree holder might deem fit to add as respondents in the

execution proceedings, in order to give a quietus to the controversies. The lower court shall see to it that the matter is disposed of on or before

31.08.2010.

With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.