Nagarajan vs Selvaraj (dead.) and Others

K. Govindarajan, J.—The above revision is directed against the Order passed in E.A.No. 333 of 1992 in E.R.No. 33 of 1991 in O.S.No.

125 of 1984 on the file of the learned Additional Sub Judge, Cuddalore, dated 15.9.1992.

One Kallati Nattar and Mannarsami Nattar filed a suit against one Govindan in O.S.No. 88 of 1966 on the file of the Sub Court, Cuddalore for

declaration and possession admitting the fact that the said Govindan was in possession of the suit property. The said suit was dismissed on

31.10.1970 after full trial, affirming the title of the said Govindan. The said plaintiffs preferred an appeal in A.S.No. 135 of 1971 on the file of the

District Court, Cuddalore which was dismissed on 1.10.1974. They further preferred appeal in S.A.No. 301 of 1975, which was also ended in

dismissal on 9.9.1977.

The petitioner herein filed another suit in O.S.No. 125 of 1984 on the file of the Sub Judge, Villupuram impleading the said Govindan as the 4th

defendant in that suit for declaration and possession of the property which is the subject matter in O.S.No. 88 of 1986, after setting aside the

decree passed in O.S.No. 88 of 1986. The said Govindan filed written statement and since he was not able to attend the court, an ex parte decree

was passed on 3.2.1987. He filed an application in I.A.No. 121 of 1987 to set aside the ex parte decree. Meanwhile, the said Govindan died and

the respondents herein were impleaded as his Legal Representatives. Ultimately the said application was dismissed on 14.4.1988. Aggrieved

against the same the respondents herein filed appeal in C.M.A.No. 189 of 1988, which was also dismissed on 28.2.1991. Still aggrieved they filed

revision in C.R.P.No. 288 of 1991 which was also ended in dismissal on 2.4.1991. The SLP filed against that Order was also dismissed.

Pursuant to the decree in O.S.No. 125 of 1984, the petitioner filed E.P.No. 33 of 1991 to execute the said decree. The respondents filed an

application in E.A.No. 333 of 1992 u/s 47 of the Code of Civil Procedure. According to the respondents, the decree in O.S.No. 125 of 1984,

without setting aside the appellate court decree in S.A.No. 301 of 1975, in which the decree in O.S.No. 88 of 1966 had merged, is only a nullity

and cannot be executed. The said application was resisted by the petitioner stating that the main relief in O.S.No. 125 of 1984 was for declaration

and for recovery of possession and not mainly for setting aside the decree passed in O.S.No. 88 of 1966. The court below in its Order dated

15.9.1992 rejected the execution petition on the ground that the decree passed in O.S.No. 125 of 1984 is a nullity. Aggrieved against the same,

the petitioner has filed the above revision.

It is not in dispute that the suit in O.S.No. 88 of 1966 filed by Kallati Nattar and Mannarsami Nattar was dismissed, and, ultimately the

dismissal of the said suit was confirmed by this Court in S.A.No. 301 of 1975. The petitioner who is the purchaser of the suit property filed

another suit in O.S.No. 125 of 1984 against the said Govindan as stated above. The learned Sub Judge, Villupuram in the judgment, granted the

decree as prayed for, which is as follows:

That the plaintiff be and is hereby entitled to the suit property;

That the defendants do delivery possession of the suit property;

That the decree in O.S.No. 88 of 1966 on the file of the Sub Court, Cuddalore be set aside;

That the mesne profits will be determined in separate proceedings under Order 20, Rule 12, C.P.C.; and

That the defendants do pay the plaintiff the sum of Rs. 2,604.90 being costs of the suit.

To execute the same, the petitioner filed E.P.No. 33 of 1991. The main contention raised in the petition filed by the respondents herein is that

the decree obtained in O.S.No. 125 of 1984 is a nullity, that the decree granted in O.S.No. 88 of 1966 is riot in existence as it has already been

merged with the decree in S.A.No. 301 of 1975. On the basis that the decree passed in O.S.No. 88 of 1966 has already been merged with the

decree in S.A.No. 3301 of 1975, the court below came to the conclusion that the respondents will not get any right by setting aside the decree

granted by the trial court in O.S.No. 88 of 1966, it was not in existence on the date of passing of the decree in O.S.No. 125 of 1984.

The court below has proceeded on the basis that the petitioner herein got the relief in O.S.No. 125 of 1984 only by setting aside the decree in

O.S.No. 88 of 1966, which is not factually correct. The clauses contained in the decree in O.S.No. 125 of 1984 clearly establish that the setting

aside of the decree in O.S.No. 88 of 1966 is a separate and an independent clause in the decree, and the other clauses in the decree are not

depending on the said clause. The clause Nos. 2, 4 and 5 in the decree in O.S.No. 125 of 1984 are to be executed in the execution proceedings.

So, it cannot be heard to say that the entire decree has become nullity or not executable one, in view of the merger of the decree in O.S.No. 88 of

1966 with the decree in S.A.No. 301 of 1975. Moreover, the suit in O.S.No. 88 of 1966 was dismissed and no positive declaration or relief is

given in favour of the defendants in the said decree.

As rightly contended by the learned Counsel appearing for the petitioner, the executing court cannot go beyond the decree, as the plaintiff has

got the decree for recovery of possession and for mesne profits. On that ground, the executing court cannot refuse to proceed with the execution,

as the plaintiff is having valid and substantial decree, and also in view of the fact that he is not executing clause (3) of the decree.

As rightly submitted by the learned Counsel appearing for the respondents, the decree of the trial court in O.S.No. 88 of 1966 had been

merged with the decree of the High Court in S.A.No. 301 of 1975 and the decree in O.S.No. 88 of 1966 was not in existence on the date of the

decree granted in O.S.No. 125 of 1984 and so even if any relief is given in the decree in O.S.No. 125 of 1984 by way of setting aside the said

decree in O.S.No. 88 of 1966, the effect is that the plaintiff would not get any benefit out of it, and, merely because such a relief was given under

the said decree in O.S.No. 125 of 1984, it cannot be said that the entire decree has become nullity or not executable one, and that the other reliefs

given in the decree are enforceable in law, as it has become final as against the defendants.

Moreover, in view of the subsequent decree in O.S.No. 125 of 1984, the earlier decree in O.S.No. 88 of 1966, dismissing the suit filed by the

plaintiff, should be taken as superseded. If any authority is needed, the same is found in Moturi Seshayya v. Venkatadri Appa Row, 31

M.L.J.219, in which it is held that in cases of judgments ''inter parties'' the latest adjudication should be taken as superseding the earlier, whether or

not the earlier adjudication was made.

Similarly, it was decided in Rukmani Ammal v. Narasimma Iyer, 1921 M.W.N. 487, that where the rights obtained under two decrees, both

binding on both sides, are in conflict with each other, the rights under the later decree must prevail.

The Kerala High Court in Arumukhom Nadar v. Saidukannu Pakeer Pillai, 1950 K.L.T. 32, has held that when there are two inconsistent and

contradictory decrees ''inter parties'', the prior decree becomes unenforceable after the later decree, which alone can prevail.

The same view has been taken in Padmanahhan Krishnan v. Mathevan Pillai AIR 1952 Travancore Cochin 294.

The Allahabad High Court in Mewa Ram and Others Vs. Deo Prakash minor through Mst. Chandravati, , has held as follows:

In case Murari Lal had filed a suit under Order 21, Rule 63 and that suit had failed with the result that it had been finally decided that the gift-deed

was fictitious and in spite of that decree, a competent court had subsequently held ''Inter parties'' that the gift - deed was valid, the decision

subsequent in date would operate as ''res judicata'' and not the previous one, if the other conditions of Section 11 CPC were fulfilled.

The Division Bench of Karnataka High Court in Madappa v. Basavalingappa AIR 1951 Mys. 36 has held that when there are two conflicting

decisions operating as res judicata, the later decision is effective and should be deemed to have superseded the former decision whether there be

an express adjudication or not.

In view of the above decisions, on the basis of the decree in O.S.No. 88 of 1966, it cannot be contended that the execution court cannot

execute the decree in O.S.No. 125 of 1984. The executing court has not appreciated all the points, and rejected the Execution petition only on the

basis that the decree in O.S.No. 125 of 1984 cannot be enforced without setting aside the decree in S.A.No. 301 of 1975.1 find it difficult to

accept the same. The court which has passed the decree in O.S.No. 125 of 1984 has jurisdiction to pass such a decree. On the basis of the

decree in O.S.No. 88 of 1966 it cannot be said that the decree now passed cannot be enforced.

Since no other points have been argued by the learned Counsel appearing for the respondents to sustain the Order , and in view of the above

discussions, I find that the Order of the court below cannot be sustained and the same is set aside. The court below is directed to proceed with the

execution proceedings in E.P.No. 33 of 1991. Accordingly, this revision is allowed. No costs.