Narasammal (died) and Another vs M.S. Shanmugam

Srinivasan, J.—Learned Counsel for the petitioner raised several interesting questions of law. But they do not arise for consideration in the

present case. In fact, they are very much outside the scope of the present proceeding out of which this civil revision petition has arisen.

The short facts, which are necessary for this revision, are these; The property of the petitioner in the revision petition was the subject matter of

mortgage in favour of one, M.S. Jayaprakash, exercising his power u/s 69 of the Transfer of Property Act, the mortgagee brought the property to

sale and the respondent herein purchased it. The respondent filed O.S.No.6473 of 1975 on the file of the V Assistant Judge, City Civil Court,

Madras for recovery of possession on the strength of his purchase. In that suit, several defences were raised attacking the validity of the sale in

favour of the respondent. The V Assistant Judge, City Civil Court, Madras, by his judgment dated 15-2-1980, upheld the validity of the sale and

granted a decree in favour of the, respondent. Issue No. 4 in the suit was whether the Sale was, fraudulent and collusive between the mortgagee

and his brother, the plaintiff therein. That issue was found in favour of the plaintiff and the Court passed a decree for possession.

The petitioner filed A.S. No. 157 of 1981 which was dismissed by the VI Additional Judge, City Civil Court, Madras by his judgment dated

27-3-1981. Undaunted by the defeat in the trial court and the Appellate Court, the petitioner approached this Court in S.A. No. 1713 of 1981

and that appeal Was'' dismissed by this Court on 26-8-1985. The contentions raised by the petitioner in that second appeal were negatived and

this court held that the sale in favour of the plaintiff was vaild.

When proceedings for executing the decree were pending, the petitioner filed an application u/s 47, C.P.C. which was numbered as E.A. No.

1384 of 1987. In the petition originally filed, the only contention raised by the petitioner was that there was a settlement of the dispute between the

parties after the decree and the plaintiff agreed to take a sum of Rs.82,000/- in full quit and later backed out. According to the petitioner, the

decree got fully satisfied by virtue of the said agreement and there was no executable decree. Subsequently, additional grounds were filed in the

petition u/s 47 C.P.C. It was argued in the additional grounds that the sale in favour of the plaintiff u/s 69 of the Transfer of Property Act was void

ab initio and it would not become valid by virtue of the decree passed in the suit. It was also contended that the mortgagee had taken the sale in the

name of his brother only benami and the mortgagee was the real purchaser in the sale u/s 69 of the Transfer of Property Act.

The executing Court found against the settlement pleaded by the petitioner. Learned Counsel for the petitioner read the deposition of the

petitioner given before the executing court. With regard to the alleged settlement of dispute, the petitioner states that the plaintiff and his brother

Jayaprakash said that the dispute could be settled and, based on that statement, the petitioner made arrangement for sale of the property with a

view to pay off the amount due to the mortgagee, but they did not turn up later. In the cross-examination, the petitioner states that the affair of

settlement was made about 5 or 6 years prior to the date of deposition and that She did not remember the exact year. She admits that there is

nothing in writing with regard to the alleged settlement. The evidence of the petitioner with regard to the agreement between the parties is

absolutely worthless. Even the chief-examination shows that there was no concluded contract. What all she has stated is, that the plaintiff and his

brother represented that the matter could be settled. But even according to the petitioner, they had backed out Hence the plea of settlement of the

dispute and satisfaction of the decree is unsustainable and cannot be accepted.

With regard to the invalidity of the sale, the executing court observed that all the issues had been decided in the suit against the petitioner and she

had no right to raise the same questions again u/s 47 C.P.C. The view taken by the executing court is perfectly in accordance with law and the

order passed by the executing Court is unassailable.

However, learned Counsel for the petitioner argued before me that the question of invalidity of the sale could be raised in the executing Court

because the sale was vitiated by fraud. He placed reliance on the judgment of the Bombay High Court reported in Shewa Lachha Banjar Vs.

Bhawarilal Ganeshmal Marwadi and Others, . Justice Masodkar, held that Section 44 of the Evidence Act in terms applies to execution matters as

well which permits leading of evidence that the order sought to be executed was not binding if it was passed by mistake or fraud. The judgment of

the Bombay High Court has no relevance whatever to the present case. It is not the contention of the petitioner that the decree passed in O.S. No.

6473 of 1975, which is sought to be executed now, is vitiated by fraud or mistake. There is no such plea. On the other hand, the plea is that the

sale in favour of the plaintiff in O.S. No. 6473 of 1975 on the strength of which the decree was passed in favour of the plaintiff, was vitiated by

fraud of the mortgagee. That plea is not available to the petitioner after the Court has held in the suit that the sale was valid. According to learned

Counsel, the particular facts on the basis of which the sale was said to be void, were not placed before the Court at the time of the trial of the suit.

If that is so, the petitioner has to blame herself. Having had the opportunity to let in evidence and establish the case that the sale was void, it is not

open to the petitioner to raise that question in the executing court after the Court has held that the sale was valid. I have referred to the fact that the

petitioner came up to this court in second appeal and challenged the same; but failed in all the three Courts. Hence the plea that the sale was void is

not available to the petitioner herein.

Learned Counsel for the petitioner contends that a void transaction could not be validated by a decree of the Court. There is a fallacy in this

argument. For declaring the particular transaction to be void, certain facts are necessary. The Court has to give findings on the question of fact

which arises for consideration and if the findings lead to the conclusion that there, were sufficient circumstances to vitiate the validity of the sale,

then the Court would hold that the sale was void. If, on the other hand, the Court comes to the conclusion, that the facts and circumstances do not

indicate any vitiating factor, then the court would hold that the sale was valid. In the present Case, the Court held that the sale was valid. That was

on the footing that there was no circumstances vitiating the sale. Hence it cannot be contended that the Court cannot validate a void transaction.

This is not a case of validating a void transaction, but this is a case of the Court finding that there were no circumstances to vitiate the transaction to

hold it to be invalid. Once the Court declares that a particular transaction is valid, then it is not for the executing Court to say that the transaction is

void ab initio and the decree can be ignored by the executing court. The proposition advanced by learned Counsel, to say the least, is

preposterous.

Learned Counsel invited my attention to the judgments of this Court in The Egmore Benefit Society Vs. K. Aburupammal and Others, and V.P.

Padmavathi Ammal and Others Vs. P.S. Swaminatha Iyer and Others, and contended that a sale by the mortgagee in favour his nominee would

amount to a sale by the mortgagee in favour of the mortgagee himself and such a sale u/s 69 of the Transfer of Property Act is void ab initio. In

both the cases referred to above, the question was raised in the suits filed by the purchaser in the sale u/s 69 of the Transfer of Property Act for

recovery of possession. The defendants. - mortgagors in those suits contended that the sales on the strength of which the suits were filed, were

void as the purchasers were only nominees of the mortgagees and that contention was accepted on facts. In both the cases, the Court held that the

facts and circumstances available to the Court proved that the sale was in favour of the mortgagee himself, Hence the Court held that the sales

were void ab initio) Those two judgments will not apply to the present case. In this case, the Court held in the suit for recovery of possession that

the sale was valid and the plea is sought to be raised once again in the executing court which cannot be allowed.

Learned Counsel places reliance on the judgment of the Bombay High Court in Vallabhdas v. Pranshankar AIR 1929 Bom. 24. There again,

the question was raised on the suit filed by the purchaser for recovery of possession on the strength of the sale u/s 69 of the Transfer of Property

Act. Justice Fowestte drew a distinction between a benami purchase in Court auction sales and a benami purchase in private sales u/s 69 of the

Transfer of Property Act While the benami purchases in Court auction sales are only voidable and not void ab initio, benami purchase in private

sales u/s 69 of the Transfer of Property Act are void ab initio. The difference between the two kinds of sales was clearly enunciated in that

judgment. It was held on the facts that the purchaser in the sale held u/s 69 of the Transfer of Property Act was only a nominee of the mortgagee

and the sale was not, therefore, a valid one. That judgment also has no application whatever to the present case.

Learned Counsel for the petitioner contends that the mortgages was a trustee for sale by virtue of Section 52 of the Trusts Act and he

committed a breach of trust by selling the property u/s 69 of the Transfer of Property Act to himself through his nominee. This contention is again

based upon the factual allegation that the purchaser in the sale was a nominee. That fact was not established in the suit filed by the purchaser and it

is not open to the petitioner to contend in the executing Court that the purchaser was only in favour of a nominee or the mortgagee. Hence this

contention has no substance in the present case.

Hence I hold that the order of the executing Court rejecting all the contentions raised by the petitioner and dismissing her application u/s 47

C.P.C. is correct and proper and has to be upheld. The civil revision petition has no merits and it is dismissed. But there will be no order as to

costs.