Mirthubasini vs Easwaramurthy and Shanmugam

S. Rajeswaran, J.—This appeal has been filed against the judgment and decree of C.M.A. No. 1 of 2007 dated 11.07.2007 on the file of

the Court of the Additional District Sessions Judge, Fast Track Court-III, Dharapuram, Erode District reversing the judgment and decree of E.A.

No. 114 of 2005 in E.P. No. 29 of 2005 in O.S. No. 3 of 1997 dated 04.08.2006, on the court of the Subordinate Judge at Dharapuram.

The claimant in E.A. No. 114 of 2005, in E.P. No. 29 of 2005, in O.S. No. 3 of 1997 is the Appellant before this Court. She is aggrieved by

the order passed by the Lower Appellate Court in C.M.A. No. 1 of 2007 dated 11.07.2007 reversing the judgment passed by the Execution

Court in E.A. No. 114 of 2005 in E.P. No. 29 of 2005.

The facts which are necessary for the purpose of disposing of the Appeal are as follows:

For the purpose of convenience, the parties are referred to as per their rankings in the suit i.e., O.S. No. 3 of 1997.

O.S. No. 3 of 1997 was filed by the Plaintiff for specific performance and a decree was passed in his favour on 20.12.1999. After passing off the

decree, the Plaintiff filed an Execution Petition and got the Sale Deed executed with the help of the Execution Court. Thereafter, he filed E.P. No.

29 of 2005 for possession. Pending E.P. No. 29 of 2005, the claimant as third party filed E.A. No. 114 of 2005 under Order 21 Rule 58 read

with Section 47 Code of Civil Procedure

The case of the claimant in E.A. No. 114 of 2005 is that, she is a minor daughter of the Defendant in the suit, entered into a sale agreement in

respect of some items of joint family ancestral property on 31.07.1995 with the Plaintiff/decree holder. The claimant was born on 09.01.1996 and

thereafter she filed a suit for partition in O.S. No. 78 of 1999 and in that suit, she obtained a final decree on 17.09.2001. The Plaintiff/decree

holder after obtaining an ex-parte decree in the suit for specific performance in O.S. No. 3 of 1997, filed the present Execution Petition for getting

possession. However, the claimant got possession of same property through the Execution Court by filing an Execution Petition for possession in

the suit filed by her in O.S. No. 78 of 1997. Therefore, as he has been in possession of the property through a validly passed decree in O.S. No.

78 of 1999, the present Execution Petition filed by the Plaintiff/decree holder in O.S. No. 3 of 1997 for taking possession of the very same

property is not maintainable and therefore, the claim petition is to be allowed.

This claim petition filed in E.A. No. 114 of 2005 was resisted by the Plaintiff/decree holder by filing a counter wherein it was stated that he

already got the Sale Deed executed through the Execution Court on 31.07.1995 and the property is a self-acquired property of the judgment

debtor. Having got the Sale Deed executed, now, he filed the present E.P. i.e., E.P. No. 29 of 2005 for taking possession of the same property.

To E.P. Proceedings, claim petition has been filed by the wife of the judgment Debtor. In so far as the decree obtained by the claimant in O.S. No.

78 of 1999 is concerned, it was stated that, that was a collusive one and the same would not bind the Plaintiff/decree holder as he was not at all a

party to the suit. It was further pointed out by the Plaintiff/decree holder that a separate suit in O.S. No. 118 of 2002 has been filed by the claimant

seeking the very same relief which is now asked in E.A. No. 114 of 2005 and the said suit was dismissed. Further, the judgment debtor also filed

I.P. No. 8 of 1997 and that was also dismissed on the ground of collusion and fraud. Hence, the Plaintiff/decree holder sought for dismissal of the

claim petition filed in E.A. No. 114 of 2005.

The judgment debtor also filed a counter stating that the claim Petitioner is his daughter and she is living with her mother separately. He further

stated that claimant did not know about the transaction took place between the decree holder and the judgment debtor. As a partition suit was

already filed by the claimant in O.S. No. 78 of 1999 and possession was taken on the basis of the final decree, the present Execution petition is to

be dismissed.

Before the Execution Court, the claim Petitioner examined PW1 and PW2 and marked Exhibits P1 to P12. The Plaintiff/decree holder

examined RW1 to RW3 and marked Exhibits R1 to R7. After considering the pleadings and evidence, the Execution court allowed the petition

and aggrieved by the same, the Plaintiff/decree holder filed CMA. No. 1 of 2007 on the file of the Additional Districts and Session Judge(Fast

Track Court No. III), Dharapuram.

Before the Lower Appellate Court, objections were raised on behalf of the Plaintiff/decree holder, stating that as there was No. order of

attachment passed by the Execution Court, the petition filed by the claim Petitioner in E.A. No. 114 of 2005 under Order 21 Rule 58 CPC is not

at all maintainable. It was further objected to that even u/s 47 Code of Civil Procedure, the claim petition was not maintainable as the contention of

the claim Petitioner is that, the property was not a self-acquired property and it is a part of the joint family property.

If that being so, it was contended on behalf of the Plaintiff/decree holder that the application filed in E.A. No. 114 of 2005 is not maintainable at

all.

The Lower Appellate Court sustained both the objections raised by the Plaintiff/decree holder and accordingly, held that EA. No. 114 of 2005

filed under Order 21 Rule 58 and Sec 47 CPC is not maintainable. On merits also, the Lower Appellate Court after evaluating the Exhibits P6, P7

and P9, held that these exhibits did not prove the case of the claim Petitioner that the property is a joint family property and herefore, the claim

Petitioner has not proved her case on merits also. hus, the Lower Appellate Court allowed the Appeal filed by the Plaintiff/decree holder on

11.07.2007 and aggrieved by the same, the claim Petitioner filed the second appeal before this Court.

Heard the learned Counsel appearing for the Appellant/claim Petitioner, the learned Counsel appearing for the first Plaintiff/decree holder and

the learned Counsel appearing for the second Respondent/Defendant/judgment Debtor. I have also gone through the entire documents made

available on record.

This C.M.S.A. was admitted by this Court on 22.11.2007 and at the time of admission, the following substantial questions of law were framed

by this Court:

When the Appellant has filed claim petition filed in the E.P. Court, praying the release of the suit property in view of E.P. No. 29 of 2005 filed

by 1st Respondent herein has already been attached, will not the provision of Order XXI Rule 58 of CPC will apply?

Is the lower appellate court correct in dismissing petition filed u/s 47 of Code of Civil Procedure?

Is the lower appellate court correct in arriving at conclusion that it is the self acquired property of the 2nd Respondent herein inspite of the

existence of Ex.P6 & P7?

When the Appellant has already taken possession of half of the suit property as per E.P. No. 200 of 2003, is the lower appellate Court correct

in holding that the first Respondent is entitled to take possession of the entire suit property?

When there is a building, put up by the Appellant herein over the suit property, whether the order of the lower appellate court in making

feasibility of first Respondent to take possession of the vacant land alone?

The above substantial questions of law could be re-arranged and re-grouped as follows:

Whether the Lower Appellate Court has correctly held that E.A. No. 114 of 2005 filed under Order 21 Rule 58 read with Section 47 CPC is

not maintainable?

Whether the findings given by the Lower Appellate Court on the basis of Ex.P6, P7 and P9 that these exhibits did not prove the case of the

Appellant that the property is a joint family property are perverse or not?

When the Appellant herself has taken possession by filing an Execution Petition and put up a building on the property, whether the

Plaintiff/decree holder is entitled to take possession of the vacant land alone.

Objections were raised before the Lower Appellate Court that Order 21 Rule 58 r/w. Section 47 CPC application is not maintainable. The

Lower Appellate Court accepted the contention that the petition filed under Order 21 Rule 58 read with Section 47 CPC is not maintainable on

the ground that:

a) No. property was attached so as to be released; and

b) the question of self-acquired property and joint family property could not be attached u/s 47 proceedings.

To decide this issue, it is useful to refer to Order 21 Rule 58 which reads as follows:

Adjudication of claims to, or objections to attachment of property

(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground

that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the

provisions therein contained:

Provided that No. such claim or objection shall be entertained

(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or

(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.

(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their

representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or

objection and not by a separate suit.

(3) Upon the determination of the questions referred to in Sub-rule (2), the Court shall, in accordance with such determination,

(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or

(b) disallow the claim or objection; or

(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or

(d) pass such order as in the circumstances of the case it deems fit.

(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to

the same conditions as to appeal or otherwise as if it were a decree.

(5) Where a claim or an objection is preferred and the Court, under the proviso to Sub-rule (1), refuses to entertain it, the party against whom

such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any,

an order so refusing to entertain the claims or objection shall be conclusive.

A perusal of the above Rule will make it very clear that under Order 21 Rule 58, if any claim is preferred to the attachment of any property

attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the

claim or objection in accordance with the provisions contained thereon. It is also made clear in the proviso that if the property attached has already

been sold or if the Court considers that the claim is designedly or unnecessarily delayed, then, No. such claim shall be entertained by the Court.

In the present case, it was not in dispute that the property was not attached in execution of the decree and in fact, the decree itself was for the

specific performance of the sale agreement. It is also not in dispute that the Sale Deed was also executed in favour of the Plaintiff/decree holder in

the previous Execution proceedings. Thus, even before filing the claim petition under Order 21 Rule 58, the Sale Deed was already executed by

the Execution Court in favour of the Plaintiff/decree holder. It is, therefore, No. property was attached by the Execution Court and the Sale Deed

itself was arleady executed by the Execution Court in favour of the Plaintiff/decree holder. In such circumstances, the Claim Petition filed under

Order 21 Rule 58, as if there was an attachment and that was to be released is not at all maintainable and therefore, I concur with the finding of the

Lower Appellate Court that the claim petition filed under Order 21 Rule 58 is not maintainable.

Now, let me consider the maintainability of the Execution Application u/s 47 Code of Civil Procedure. To decide this question, Section 47 can

be referred to usefully which reads as follows:

Questions to be determined by the Court executing decree

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution,

discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section,

be determined by the Court.

[Explanation I.-For the purposes of this section, a Plaintiff whose suit has been dismissed and a Defendant against whom a suit has been dismissed

are parties to the suit.

Explanation II.-(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the

suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions

relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]

A perusal of Section 47 will make it very clear that all questions arising between the parties to the suit, in which, the decree was passed or their

representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not

by separate suit.

Admittedly, the claim petition has been filed by the daughter of the judgment Debtor and therefore, she was not a party to the suit nor she

claimed the property as the representative of the judgment Debtor.

In St. Mark''s Educational Trust Vs. S. Ashok Kumar, , I had an occasion to go through the scope of Section 47 and in that decision, it was

held as follows:

In the above judgment, the Hon''ble Supreme Court has elaborately dealt with the power of the executing court u/s 47 of Code of Civil

Procedure, and held as follows:

u/s 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the

execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers

of the court u/s 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate court is not only entitled

but obliged under law to go into the questions of facts as well, like the trial court, apart from questions of law. Powers of the second appellate

court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from

1.2.1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and

substituted by the aforesaid Central Act, have been further narrowed down as now in such an appeal only a substantial question of law can be

considered. The powers of this Court under Article 136 of the Constitution of India, should not be exercised simply because substantial question of

law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this Court.

Powers of revision u/s 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law

arises, but such an error must suffer with the vice of error of jurisdiction. of course, the revisional powers exercisable under the Code of Criminal

Procedure and likewise in similar statutes stand on entirely different footing and are much wider as there the court can go into the correctness,

legality or propriety of the order and regularity of proceeding of the inferior court. It does not mean that in each and every case the revisional court

is obliged to consider questions of facts as well like a first appellate court, but the court has discretion to consider the same in appropriate cases

whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy

of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be

reviewed.

The exercise of powers u/s 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can

allow objection u/s 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground

that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was

promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the Governing Body of the College

which was the Defendant without seeking leave of the court to continue the suit against the University upon whom the interest of the original

Defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the

Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any

other remedy available under law on the ground that the original Defendant absented himself from the proceedings of the suit after appearance as

he had No. longer any interest in the subject of dispute or did not purposely take interest in the proceedings or colluded with the adversary or any

other ground permissible under law.

From the above judgment, it is very clear that the powers of the court u/s 47 are much narrower than its powers of the appeal, revision or

review. The executing court can allow objections u/s 47 of the Code to the executability of the decree if it is found that the same is void ab initio

and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was obtained passed in

ignorance of such a provision of law or the law as promulgated making the decree in-executable after its passing. The validity or otherwise of a

decree may be challenged by getting a properly instituted suit or taking any other remedy under law. The executing court cannot go behind the

decree except when the decree is a nullity or is without jurisdiction.

From the above judgment, it is very clear that the powers of the Execution Court u/s 47 are much narrower and the court can allow objection

u/s 47 if it is found that the decree is void abinitio apart from the ground that the decree is not capable of execution under law either because the

same was obtained/passed in ignorance of a provision of law or the law has promulgated making the decree inexecutable after its passing.

Therefore, the scope of Section 47 is very narrow and the same cannot be widened by the claim Petitioner to decide the issue namely whether the

property in dispute is a self-acquired property or a joint family property.

In M.S. Kalyanasundaram Ayyar Vs. M.S. Subramanya Ayyar and Others, , a Division Bench of this Court held as follows:

Mr. Ramaswami Aiyangar had to concede that the first Defendant could represent his sons, the Plaintiff and Defendants 2 to 4, in O.S. No.

302 of 1936 and any decree obtained against the first Defendant would be binding on the sons; because, as the head and ''kartha'' of a joint family,

apart from his position as the father, the first Defendant had full power to represent the joint family. A decree obtained against the first Defendant

''bona fide'' would be biniding on all the other members of the family unless the other members can later on show that there was fraud, collusion, or

negligence on the part of the first Defendant in the conduct of the suit. This position is now firmly established after the Full Bench decision in

Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju, and the Bench decision in -- C.K.S. Krishnamurthi and Another Vs.

Chidambaram Chettiar and Others, . One of us had to consider the effect of such representation in ''Papanasam Chettiar v. Muthayya Chettiar,

AIR 1949 Mad 625 (Z), where it has been held that the proposition that a family is bound by a decree properly passed against the manager, either

in respect of family property, or for a debt contracted by the manager, is well-settled, and where the suit related to joint family property, or a debt

payable by the joint family, and the person sued is the manager, he need not be described as such in the plaint, though it may be advisable to do

so. The observations in Vadlamanati Venkatanarayana Rao Vs. Gottumukkule Venkata Somaraju, '' had been relied upon there. Such being the

case, if the first Defendant could represent his sons at the time the decree was passed, how he loses his representative capacity when the sale takes

place is difficult to understand.

But Mr. Ramaswami Iyengar contends that Order 34, Rule 14, Civil P.C. does not contain an imperative prohibition against the obtaining of a

simple money decree for payment of money in satisfaction of a claim arising under the mortgage, but that what is prohibited is the attachment and

sale of the equity of redemption pursuant to such a decree. The representative capacity of a father or manager in a joint Hindu family does not

extend to a case where the act done against the family contravenes a statutory prohibition. Under those circumstances, one has to see whether,

even though the father can represent under ordinary conditions, his right to represent is taken away when something prohibited by law is done. We

are unable to say that such a distinction exists. A sale to which the father may be a party in a representative capacity may be subject to illegalities

and irregularities referred to in Order 21, Civil P.C., and such a sale can be set aside for proper reasons, under Order 21, Rule 90, Civil P.C. But

the fact that a sale did not conform to the provisions of the Code cannot take away from the representative character of the judgment-debtor.

No authority has been placed before us for the proposition that the father or the manager loses his representative capacity when the sale takes

place, even though he could represent, at the time the decree was passed. We do not feel that we can accede to the contention of the learned

Counsel on this point. In our opinion the sale in execution of the decree in O.S. No. 302 of 1936 was only voidable and not void, and for proper

reasons the Plaintiff could have brought a suit to avoid it, the limitation for such a suit being that provided by Article 12(a), Limitation Act.

In the above judgment, the Division Bench held that the decree obtained against the Hindu father bonafide would be binding on all other

members of the family unless the other members can later on show that there was a fraud, collusion or negligence on the part of the father in the

conduct of the suit.

Admittedly, in the present case, a Sale Agreement was entered into by the judgment Debtor/father of the claim Petitioner even before she was

born. To enforce the said Sale Deed only, the decree holder filed the suit, obtained a decree and got the sale deed also executed in the previous

execution proceedings. Therefore, it is not now open to the claim Petitioner to claim that the sale deed executed in favour of the decree holder is

not binding on her and therefore possession cannot be parted with.

In D. Saraswathy, L. Latha and R. Panneerselvam Vs. K. Krishnasamy and Others, , the scope of Section 47 came up for consideration

before this Court and this Court reiterated the principle that the Execution Court cannot go behind the decree and it is to execute the decree as it

stands.

In Sri T.N. Anantha Balaraje Urs Vs. Smt. Gunamba Nanjaraje Urs., , a full bench of the Karnataka High Court while considering the scope

of Section 12 of the Hindu Adoptions and Maintenance Act, 1956, held that the sole surviving coparcener is entitled to dispose of coparcenary as

if it were his separate property. If a son is subsequently born to him or adopted by him, alienation made by the coparcener will stand because the

son cannot object the alienation made by the father before he was born or begotten.

In Manish Mohan Sharma and Others Vs. Ram Bahadur Thakur Ltd. and Others, , the Hon''ble Supreme Court held that an Executing Court

cannot go behind the decree unless the decree is a nullity for a lack of inherent jurisdiction and the lack of jurisdiction is patent on the face of the

decree.

In the light of the above judgments also, I am of the considered view that the application filed by the Appellant herein before the Execution

Court in E.A. No. 114 of 2005 under Order 21 Rule 58 read with Section 47 is not maintainable. Further, it is also an undisputed fact that before

filing the present execution proceedings in E.P. No. 29 of 2005 for taking possession of the property, the Plaintiff/decree holder initiated the

previous execution proceedings wherein the decree was already partly executed i.e., by executing the Sale Deed in favour of the Plaintiff/decree

holder by the Execution Court. Thus, the property was already transferred in his name and this sale was not at all challenged by the claim

Petitioner. The challenge now made is only in the present E.P. filed by the decree holder to take possession of the property for which sale deed

has already been executed in his favour. Therefore, the first substantial question of law is decided against the Appellant and in favour of the first

Respondent/decree holder.

The case of the claim Petitioner before the Execution Court is that, the property is a joint family property and therefore, she filed a partition suit

and the partition suit was decreed in her favour. Further, being the final decree, she executed the decree also, took possession of the property and

the same could not be given possession to the decree holder/judgment debtor. To prove her case that it is a joint family property, the claim

Petitioner marked Ex.P6, P7 and P9. Exhibit P6 is the copy of the sale deed in which the mother of the judgment debtor sold away her separate

and present property to one Natarajan. Ex.P7 is the copy of the sale deed, in which, the father of the second judgment debtor sold his own

separate property to one Govindasamy. The date of the first sale is 25.02.1994 and the second sale is 25.08.1994. Ex.P9 is the copy of the sale

deed, in which, the judgment debtor himself purchased the property in question on 30.01.1995, from one Duraisamy. On evaluating these three

documents, the Lower Appellate Court concluded that these documents would never say that the judgment debtor sold away the ancestral

properties of the joint family and out of such funds only she purchased the Ex.P9 property. These findings are sought to be assailed by the

Appellant before this Court stating that they are perverse. I am unable to accept this contention as Ex.P6, Ex.P7 and Ex.P9 will not make out a

Substantial Question of Law No. 2: case that the property is a joint family property. Even otherwise it is a matter for evaluation of the evidence and

once I find that the Last Court of fact has correctly evaluated the evidence and rendered a finding, which is not perverse it is not open to this Court

to interfere with the same u/s 100 Code of Civil Procedure. Therefore, this question of law is also answered against the Appellant and in favour of

the first Respondent/decree holder.

Substantial Question of Law No. 3

The claim Petitioner/Appellant was born on 10.01.1996. The sale agreement was entered into between the Plaintiff/decree holder and the

Defendant/judgment debtor on 31.07.1995. To specifically enforce the sale agreement dated 31.07.1995, the Plaintiff/decree holder filed O.S.

No. 3 of 1997 and obtained a decree on 20.12.1999. he also filed E.P. No. 30 of 1997 to execute the sale deed. That was dismissed on

17.08.2002 for default and thereafter E.P. No. 54 of 2003 was filed and the Execution Court executed the sale deed in favour of the

Plaintiff/decree holder on 26.11.2003 and the same was registered on the file of SRO, Vellakoil. While the suit filed by the Plaintiff/decree holder

was pending in O.S. No. 3 of 1997, the claim Petitioner seems to have filed a partition suit in O.S. No. 78 of 1999 and obtained a preliminary

decree on 10.06.1999 and a final decree on 17.09.2001 and executed the decree in E.P. No. 200 of 2003. From the above facts, it is very clear

that the specific performance suit was filed first and pending this specific performance suit, the claim Petitioner filed a partition suit in O.S. No. 75

of 1999, in which, the Plaintiff/decree holder was not at all a party. Therefore, the decree obtained in O.S. No. 75 of 1999 was not at all binding

the Plaintiff/decree holder in O.S. No. 3 of 1997 and he is well within his right to execute his decree and the same could not be resisted by the

claim Petitioner by filing an application under Order 21 Rule 58 read with Section 47. If at all the claim Petitioner is bonafide in filing the partition

suit, the Plaintiff/decree holder in O.S. No. 3 of 1997 should have been shown as a party in the partition suit and the nature and interest of the

property should have been attached in the suit itself. However, No. such steps have been taken and the claim Petitioner seems to have filed the

partition suit only to get over the sale agreement executed by her father and the suit proceedings pending in O.S. No. 3 of 1997. Therefore, on the

basis of the decree obtained by the claim Petitioner in the partition suit, it cannot be said that the present E.P. filed in E.P. No. 29 of 2005 has

become inexecutable at the option of the claim Petitioner. Even if any construction is put upon the lands, it is open to the decree holder to execute

the same in a manner known to law. Therefore, this question of law is also decided against the Appellant herein.

The Appellant relied on a judgment of the Division Bench of this Court reported in 1998 (1) LW 216 (M. Selvaraj v. P. Kumariah and Ors.)

and a judgment of the Hon''ble Supreme Court reported in N. Krishnaih Setty Vs. Gopalakrishna and Others, . The first judgment namely the

judgment of the Division Bench of this Court will not apply to the facts of the present case as a specific performance suit was decreed by a learned

Single Judge of this Court which was appealed and the Division Bench held as follows:

Held, rejecting the contention: In this case it is known that the properties are the ancestral properties and that the minor sons of the Defendant have

got 4/5th share in them. Courts are enjoined to protect the interest of the minor children. It is not the case of the Plaintiffs that if the minor children

have any interest in the properties, the sale would be binding on them on any ground of necessity or benefit to the estate of the minors. The only

argument was that they can be left to file a separate suit questioning the sale deed executed by the father.

Normally, we have to decide the case and avoid multiplicity of suits, especially in a case where we are satisfied that the minor children have a

defined share in the properties which could not have been disposed of by the father. On the admitted facts, therefore, with a view to protect the

interest of the minor children and avoid multiplicity of suits, we have to see whether we could exercise our discretion against the Plaintiffs as the

relief in a specific performance suit is normally discretionary. On the fact and in the circumstances of the case, we are satisfied that we have to deny

the equitable relief to the Plaintiffs in so far as the share of the minor children are concerned. (Para 7)

In the above decision, it is not the case of the Plaintiff that if the minor children have any interest in the properties, the sale would be binding on

them on any ground of necessity or benefit to the estate of the minors. In that case, it is known that the properties are not the ancestral properties,

which is not the case in the present case. Therefore, this judgment is not at all helpful to the case of the Appellant herein.

In N. Krishnaih Setty Vs. Gopalakrishna and Others, , the Hon''ble Supreme Court held as follows:

We are in agreement with the learned Judges of the High Court that the view taken by the District Judge that as the Plaintiffs were not born on

the date of the sale they cannot challenge its validity is wrong. A void sale, as we have already held the sale in execution of the decree obtained by

the Appellant in this case to be, confers No. title on the auction purchaser and, therefore, the joint family to which the properties belonged

continued to be the owners of that property and did not lose their title there to. The Plaintiffs got a right to the property as soon as they were born,

not by way of succession but by right of birth. Therefore, Plaintiffs were certainly entitled to file a suit questioning the sale.

In the above decision, the facts are totally different and therefore, the same cannot be made applicable to the facts of the present case.

In the light of the above, I have no hesitation in holding that there are no merits in the above C.M.S.A. Acccordingly, the same is dismissed.

No cost.