R. Kamalanathan vs K. Murugesan

Mr. S.Tamilvanan, J.—Challenging the order, dated 10.08.2010 made in E.A.No.159 of 2008 in E.P.No.55 of 2007 in O.S.No.381 of 2005 on the file of the Principal District Court, Coimbatore, this revision has been preferred.

It is seen that the aforesaid suit was filed by the respondents herein against the revision petitioner, seeking a decree directing the revision petitioner/defendant to execute sale deed in respect of the suit property, based on an agreement for sale dated, 20.08.2003 in favour of the respondents/plaintiffs at their cost, after receiving balance of sale consideration Rs.5,00,000/-, failing which the Court below be pleased to execute the sale deed on behalf of the petitioner/defendant through an officer of the Court and alternatively direct the petitioner/defendant to pay a sum of Rs.13,73,000/- to the respondents/plaintiffs with interest at 18% p.a till the realisation of the entire amount.

It is seen that the suit was decreed on 26.06.2006, granting the relief of specific performance of contract with costs. Pursuant to the decree, Execution Petition in E.P.No.55 of 2007 was filed by the respondents herein before the Court below and Execution Application in E.A.No.159 of 2008 was filed under Order 21, Rule 11 (2) of the Code of Civil Procedure, seeking delivery of possession of the property. The revision petitioner herein had filed counter stating that he had filed a petition to set aside the ex parte decree passed against him on 26.06.2006 along with an application in I.A.No.446 of 2008 under Section 5 of Limitation Act to condone the delay of 509 days in filing the application to set aside the ex parte decree passed against him. However, by the impugned order, dated 10.08.2010 made in E.A.No.159 of 2008, the Court below allowed the application filed by the respondents herein and ordered delivery of possession, aggrieved by which, the revision has been preferred by the revision petitioner/Judgment-Debtor, who was the defendant in the suit.

Learned counsel appearing for the revision petitioner submits that the Court below has committed an error in ordering delivery of possession without a certified copy of the decree being produced. Even in the grounds of revision, the petitioner/Judgment-Debtor has stated that the Court below ought to have dismissed the application filed by the respondent, seeking delivery of possession, on the ground that no certified copy of the decree was filed and further contended that the suit property was sub-divided in the year 2004-2005 and hence, survey number was changed as S.F.No.357/4, however, the E.P.Court, without considering the same, ordered delivery of possession. It is argued on behalf of the revision petitioner further that E.A.No.159 of 2008 filed by the respondents/decree-holders, seeking delivery of possession, before the Court below was not legally sustainable, hence, it could have been dismissed.

Per contra, learned counsel appearing for the respondents/decree-holders submitted that the suit was decreed on 26.06.2006. Subsequently, Execution Petition in E.P.No.55 of 2007 was filed for execution of sale deed, wherein notice was served on the revision petitioner herein, who was the respondent/judgment-debtor in the E.P. On 30.04.2008, considering the certified copy of the decree and material papers and the submissions made, sale deed was also executed in favour of the respondents/decree-holders, through the Court below. It was also brought to the notice of this Court that the earlier Civil Revision Petition filed in C.R.P.No.2206 of 2009 by the revision petitioner herein was already dismissed on 16.04.2010 and subsequently, E.A.No.159 of 2008 in E.P.No.55 of 2007, seeking delivery of possession was filed by the respondents herein as decree-holders and the Court below passed an order for delivery of possession on 10.08.2010. Special Leave Petition filed by the revision petitioner/judgment-debtor was dismissed on 16.08.2010 by the Hon''ble Apex Court. Therefore, it was argued by the learned counsel for the respondents/decree-holders that the revision preferred by the petitioner/Judgment-Debtor is not at all maintainable, after the decree reached its finality, the revision has been preferred on the unsustainable grounds, hence, the same has to be construed only an abuse of process of law and Court.

In this revision, in support of the claim of the respective parties, the following decisions were relied on by both the learned counsel, to enlighten the legal aspect involved in this Revision :

Shafi v. Khaderkunhi, 2009 (3) KLT 1062

Thota Rambabu @ Ramu v. Cherukuri Venkateswara Rao, AIR 2006 AP 114

Jinnah, N.K. v. K.P.Krishnan, (2006) 2 MLJ 350

Prathi Bhogaraju v. Thammisetti Veeraraju, AIR 2001 AP 465

Babu Lal v. M/s. Hazari Lal Kishori Lal, AIR 1982 SC 818

M.V.S.Manikayala Rao v. M.Narasimhaswami, AIR 1966 SC 470

Ramaganesan Pillai and others v. Rajah Ayyar and others, AIR 1964 Madras 53

It is seen that in the grounds, the revision petitioner/judgment-debtor has stated that the respondents had created an agreement, based on which, filed the suit for specific performance and obtained the decree. Pursuant to the decree, Execution Petition was filed. It is not in dispute that the Execution Petition was filed pursuant to the decree, which has admittedly reached its finality. It is well settled proposition of law that the petitioner/Judgment-Debtor, who was a party to the proceeding is not entitled to challenge the decree, before the Executing Court. It is further contended that during the year 2004-2005, the property was sub-divided and the present survey number is S.F.No.357/4, however, that was not considered by the Court below. It is not the case of the petitioner/Judgment-Debtor that there is any other property available to the petitioner/Judgment- Debtor in the survey number, apart from the suit property and that was sub-divided as S.F.No.357/4. Therefore, the alleged subsequent sub-division and the change of survey number would not confer any right or new defence in favour of the petitioner/Judgment-Debtor in this E.P.

Learned counsel appearing for the petitioner submitted that the decree relating to this revision is not executable. It is not in dispute that the decree passed by the trial court reached its finality. Mrs. Hema Sampath, learned Senior counsel contended that the first item of the property is the exclusive property of the petitioner/Judgment-Debtor. Learned Senior counsel for the petitioner, relying on the decision rendered by a Full Bench of this Court in Ramaganesan Pillai and others v. Rajah Ayyar and others, reported in AIR 1964 Madras 53 further submitted that the respondent, by reason of his purchase of share from the other co-auction purchaser cannot be treated, as if he had purchased the entire property.

In Ramaganesan Pillai and others v. Rajah Ayyar and others, reported in AIR 1964 Madras 53, Full Bench of this Court has held that right of auction purchasers relating to symbolic delivery of possession of immovable property, while interpreting Order 21 Rule 35 and 95 of the Code of Civil Procedure, wherein it was held as follows :

"In the case of a purchaser of an undivided share in execution of a decree for payment of money, joint possession can perhaps be given under Order 21 Rule 95 CPC, which is sufficiently wide to include such a case (read with rule 35(2)). But these provisions cannot apply to the present case where the purchasers obtained only a right, as it were, in equity to have the property purchased by them allotted in partition to their vendor''s share. The first respondent cannot by reason of his private purchase of the one-fourth share from the other court auction purchaser be treated as if he had purchased the entire property in execution so as him to apply under Order 21 rule 95 CPC."

Having considered the facts and circumstances of the case, in the light of the decision rendered by the Full Bench of this Court reported in Ramaganesan Pillai and others v. Rajash Ayyar and others, AIR 1964 Madras 53, it has been made clear that the decision is not applicable to this case. In the referred case, admittedly the property belonged to the Judgment-Debtor, which was sold in execution, to two different persons and only symbolical possession was given to them, since each purchaser was entitled to for a portion of the property purchased, hence, delivery of possession could not be ordered. In the instant case, there is no such circumstance available and it is also an admitted fact that the petitioner had no other property, apart from the suit property in the survey number or in the sub-division of the survey number, pertaining to the suit property, hence, the petitioner could raise no legal grievance, based on the sub-division made in the survey number.

In Thota Rambabu @ Ramu v. Cherukuri Venkateswara Rao, reported in AIR 2006 AP 114, a Division Bench of the High Court of Andhra Pradesh has held that transferee from co-owner of an undivided property gets nothing more than a right to seek partition, after the purchase, to secure possession of the share of the property purchased by him. Such transferee cannot claim the benefit of Section 53-A of the Transfer of Property Act, since he does not gain or take possession of the subject matter of the property under the transfer.

In M.V.S.Manikayala Rao v. M.Narasimhaswami, reported in AIR 1966 SC 470, a Three Judge Bench of the Hon''ble Apex Court has held as follows :

"12...In any case, the order is clearly within the terms of Order 21 Rule 96. The delivery of symbolical possession made in this case was quite in terms of the Code and so amounted to an interruption of the respondent''s adverse possession and the period of limitation for the purpose of the application of Article 144 would start from the date of such delivery. As the suit was brought within twelve years from the date of that delivery of possession, Article 144 even if it applies, does not bar it."

In case delivery of symbolic possession was made, the same would be construed to be an interruption of the respondent''s claim of adverse possession and period of limitation for the purpose of the application of Article 144 of the Limitation Act would start from the date of such delivery. As per the referred case, as the suit was brought within 12 years from the date of delivery of possession, Article 144 even if it applies does not be a bar, as decided by the Hon''ble Apex Court.

The aforesaid decision is also not applicable to the facts and circumstances of the case, since the revision petitioner himself was a party to the proceeding, suffered a decree, which has reached its finality. There is no dispute with regard to the identity of the property and there is no evidence to show that the revision petitioner has any other property in the same survey number, apart from the schedule of property relating to the suit and the E.P. Merely because there was a sub-division in the survey number and a new sub-division has been given, the revision petitioner cannot raise a new legal defence, based on the decisions relied on by the learned Senior counsel appearing for the revision petitioner.

In Jinnah, N.K v. K.P.Krishnan, reported in (2006) 2 MLJ 350, this Court (Prabha Sridevan, J), relying on the decision, Babu Lal v. M/s. Hazari Lal Kishori Lal, reported in AIR 1982 SC 818, held that Section 22 of the Specific Relief Act (Act 47 of 1963) is an enabling provision, hence passing order for delivery of possession by Executing Court has no infirmity. It is further held that when a combined relief cannot be granted to the decree-holder, where a specific relief for possession was not claimed, however, in such case, Executing Court granting the relief of delivery of possession, held not an infirmity. In the decision reported in AIR 1982 SC 818, the Hon''ble Apex Court ruled that procedure is meant to advance the cause of justice and not to retard it and held that relief of possession could be granted in favour of the decree-holder and accordingly, the special leave petition was dismissed.

In Babu Lal v. M/s. Hazari Lal Kishori Lal, reported in AIR 1982 SC 818, the Hon''ble Apex Court held as follows :

"13...In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of S.55 (1) of the T.P. Act, which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits."

It has been further held in the decision reported in AIR 1982 SC 818 at page no.825 thus :

"22. The only amendment to be made in the plaint was to add a relief for possession necessitated because of the provisions of S.22, which is only an enabling provision.

There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession. The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession, the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when S.55 of T.P. Act authorises the transferee to get possession in pursuance of a sale deed."

The revision petitioner himself is the Judgment-Debtor, he has not raised any plea in his pleadings earlier that he has some other property in the survey number, other than the description of the schedule of property. Similarly, the revision petitioner has not established that during sub-division, any other property of the revision petitioner was wrongly included, for which the respondents/decree-holders are not entitled to claim any right. It is a settled proposition of law that the judgment-debtor cannot challenge the decree before the Executing Court, by way of filing Execution Application under Order 21 Rule 11 CPC.

The High Court of Kerala in Shafi v. Khaderkunhi, reported in 2009 (3) KLT 1062, relying on the decision, Bhanwar Lal v. Satyanarain reported in (1995) 1 SCC 6, held that the challenge raised by the revision petitioner therein against the order of the Executing Court are unworthy of any merits.

Section 22 of the Specific Relief Act reads as follows :

"Power to grant relief for possession, partition, refund of earnest money etc. -

(1) Notwithstanding anything to the contract contained in the Code of Civil Procedure, 1980 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for -

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid of made by him, in case his claim for specific performance is refused.

(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court, unless it has been specifically claimed :

Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."

It is seen that Section 22 of the Specific Relief Act deals with the power to grant relief for possession, partition, refund of earnest money etc. and accordingly, any person suing for specific performance of contract for transfer of immovable property may in an appropriate case, seek the relief, as stated in the relevant section, in order to avoid multiplicity of proceedings. In a suit for specific performance, additional relief of possession, partition, refund of earnest money etc., could be granted and as per sub-section (2) of Section 22 of the Act, it is made clear that even after the introduction of the new provision, the relief could be granted, to meet the ends of justice.

In this regard, Section 55 (1) (f) is also relevant to pass appropriate orders. Section 55 (1) (f) of the Transfer of Property Act reads as follows :

"(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits."

Section 55 (1) (f) of the Transfer of Property Act, provides that the seller is bound to give, in the absence of the contract to the contrary on being so demanded by the buyer or such person as he directs, the possession of the property, as the nature admits.

In Babu Lal''s case (cited supra), the Hon''ble Apex Court has held at page number 826, which reads as follows :

"29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court.

For the reasons given above the petition for special leave to appeal must fail and it was accordingly, dismissed."

Learned counsel appearing for the respondents submitted that it is not in dispute that the decree passed by the trial court for specific performance of contract reached its finality. Pursuant to the decree, E.P. was filed by the respondents/decree-holders, sale deed was executed by the Court below, as per procedure known to law. Earlier, C.R.P filed by the petitioner/judgment-debtor was also dismissed, hence, the respondents, being the decree-holders are entitled to seek delivery of possession.

The sale deed was executed through the court below, pursuant to the decree, symbolic possession was also taken over by the respondents/decree-holders and the aforesaid factum is not in dispute. As contended by the learned counsel appearing for the respondents/decree-holders, the revision petitioner, who is the judgment-debtor is not entitled to raise a new defence, in respect of the schedule of property and similarly, he is not entitled to claim adverse possession.

As per Order 21 Rule 11 (2) CPC, Execution Application was filed only by the respondents/decree-holders, seeking delivery of possession, pursuant to the sale deed, being executing through Court. In the counter, the revision petitioner, who is the respondent/judgment-debtor before the Court below has stated that he had filed an application to set aside the ex parte decree and there was a delay of 509 days in filing the said application, hence, he filed an application in I.A.No.446 of 2008 under Section 5 of Limitation Act to condone the delay and on that ground, he pleaded to dismiss the E.P. Filing a petition under Order 9 Rule 13 of the Code of Civil Procedure along with the petition under Section 5 of Limitation Act to condone the delay is not a legal defence before the Executing Court, when the matter is posted for delivery of possession, as per the relief sought for in the Execution Application.

It is not the case of the revision petitioner/judgment-debtor that there is any other property belongs to the petitioner, other than the property pertaining to the decree, that was wrongly included in E.P. Even in case of such a defence, it must be supported by materials. The defence raised by the revision petitioner/judgment-debtor, by way of his counter before the Court below is not legally sustainable. Pursuant to the execution of the sale deed, as per the decree obtained by the respondents/decree-holders, Execution Application was filed by them for seeking delivery of possession. The revision petitioner/judgment-debtor, by way of filing his counter has objected the delivery of possession.

The decree reached its finality. In the E.P, after the sale deed has been executed through Court of law, without challenging various orders passed in the Execution Petition, including the sale deed being executed in favour of the respondents/decree-holders, the revision petitioner/judgment-debtor has raised the objection, on the ground that he has filed application to set aside the ex parte decree, with a petition to condone the delay. The aforesaid defence is not legally sustainable. The decisions cited by the learned Senior counsel appearing for the revision petitioner/judgment-debtor would nor support the defence raised by the petitioner/judgment-debtor in his counter.

On the aforesaid facts and circumstances, as held by the Hon''ble Apex Court and this Court in various decisions referred to by both the learned counsel, this Court is of the considered view that the revision petitioner/judgment-debtor has raised no legal grounds to maintain the revision and accordingly, there is no error or infirmity in the impugned order passed by the Court below, so as to warrant any interference by this Court.

In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. No order as to costs.