P. Ramaswami vs V. Marimuthu and others

Gokulakrishnan, J.—The plaintiff in O.S. 1340 of 1968 on the file of the District Munsif, Sankari, is the petitioner herein. He purchased

property with specified measurements from one Muniya Moopan and three brothers by name Ramaswami, Kava Moopan and Arthanari. Since

the issues of Ramaswami. Kava Moopan and Arthanari tried to interfere with the property purchased by the petitioner herein he filed O.S. 1340 of

1968 for a permanent injunction restraining the defendants in the suit from in any way interfering with his possession and enjoyment of the suit

property. In the alternative, he has asked for partition and allotment of 1/4th share. The first defendant in the suit is the son of Ramaswami.

Defendants 3 and 5 are the sons of Kova Moopan. Defendants 6 to 9 are the sons of Arthanari. On 17th, October 1974, a preliminary decree for

partition was passed and a Commissioner was appointed subsequently to divide the property. On 30th, October 1976 final decree was passed

allotting the red marked portion in the plan attached to the decree to the petitioner herein. Subsequent to the final decree, the petitioner filed R.E.P.

466 of 1979 for delivery of this red marked portion. At that time the respondent herein, who are the sons of the 7th defendant in the suit O.S.

1340 of 1968 filed R.E.A. 543 of 1979 praying for the dismissal of R.E.P. 466 of 1979 on the ground that they are in possession of the suit

property, that they have got interest in the property and that the decree-holder is not entitled to take possession of the property from the

respondents herein by executing the decree. The executing Court, even though negatived the contention of the respondents herein to the effect that

the seventh defendant who is the father of the respondents herein colluded with the plaintiff in the suit, allowed R.E.A. 543 of 1979 stating that the

decree will not bind the respondents herein, who are admittedly the sharers in the suit property. It is as against this order, the present revision has

been filed by the decree holder. Mr. S. Sethuratnam learned counsel for the revision petitioner, pointed out that an application filed under S. 47 of

C.P. Code, by persons claiming independent right in the suit property is not maintainable. On the other hand, Mr. Pandi, learned counsel for the

respondents, submits that the respondents are claiming rights through their father, the seventh defendant in the suit, and as such the application is

maintainable. In the petition R.E.A. 543 of 1979 filed by the respondents herein it has been clearly averred that they are the sons of the seventh

defendant in the suit that the seventh defendant did not care for the joint family affairs, that he joined hands with the first respondent in that petition,

that he is collusively assisting the petitioner herein, that the respondents have interest in the suit property that they are in physical possession of the

petition mentioned property, that their possession cannot be disturbed on the pretext of executing the decree obtained in O.S. 1340 of 1968 and

that the execution petition has to be dismissed.

Mr. P. Pandi, learned counsel for the respondents cited the decision reported in Junnoo Singh Vs. Ram Narain Singh and Others, and

contended that the petition as such is maintainable under S. 47, C.P.C. In that case, a Bench of the Allahabad High Court has observed AS

follows-

It appears to us that when a decree is passed against a manager of a joint Hindu family, the junior members of the joint family are constructively

parties to the suit in so far as their interest as members of the joint family are concerned, but are not parties to the suit qua their personal interests.

Consequently S. 47 can apply only to a dispute between the decree holder and themselves when such dispute is raised by them in the capacity of

members of the joint Hindu family, but cannot apply to a dispute raised by them in their individual capacity.

S. 47, C.P.C. reads as follows-

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.

Even though the respondents herein have questioned the execution of the decree, it is in effect, questioning the decree itself on the ground that they

are not bound by the decree since it is a collusive decree between the seventh defendant and the plaintiff and that the seventh defendant did not

care for the interest in the joint family. The said contention put forth by Mr. P. Pandi, learned counsel for the respondents comes within the four

corners of the decision rendered by a Bench of this Court in M.S. Kalyanasundaram Ayyar Vs. M.S. Subramanya Ayyar and Others, cited by

Mr. S. Sethuratnam, learned counsel for the petitioner herein. Govinda Menan, J. delivering the judgment on behalf of the Bench, has observed as

follows-

Decisions of this Court have held that if a decree was obtained against the manager of a joint family and in execution thereof the properties have

been sold, if another member of the family, not being a party to suit, wants to question the correctness of the decree or sale, he has no right to

proceed in execution under S. 47, C.P.C., but must bring a suit to establish his claim. Therefore, so far as the plaintiff is concerned, though in

certain respects his father represented him in the suit, still we have to hold that the remedy is only by way of a separate suit and not having recourse

to Sec. 47 of the Code.

Thus, it is clear from the above said decision that the only remedy available to the respondents herein on the facts and circumstances of the present

case, is to file a separate suit and not to question the execution proceedings under Sec. 47, C.P. Code. As such, the allowing of R.E. 543 of 1979

by the court below is against law and the same has to be struck down.

In the result, the civil revision petition is allowed with the result R.E.A. 543 of 1979 in R.E.P. 466 of 1979 in O.S. 1340 of 1968 on the file of the

District Munsif, Sankari is dismissed. There will be no order as to costs.