Ramachandran vs Sankaraiah Naidu

M. Venugopal, J.—The Revision Petitioner/Respondent/Petitioner has filed this Civil Revision Petition as against the order dated

06.03.2007 in E.A. No. 50 of 2004 in E.P. No. 25 of 2004 in O.S. No. 207 of 1991 passed by the Learned District Munsif cum Judicial

Magistrate, Ambattur.

The trial Court while passing orders in E.A. No. 50 of 2004 in E.P. No. 25 of 2004 in O.S. No. 207 of 1991 on 06.03.2007 has among other

things observed that ''...since the Judgment Debtor had cunningly registered the Settlement Deed in favour of her son having full knowledge of the

contested Judgment in O.S. No. 207 of 1991 and order in E.P. No. 142 of 2001, this Court feels that the Settlement Deed is not valid in view of

the Sale Deed executed by Judgment Debtor in pursuance to the Decree on 10.03.2003. Further, on perusal of Ex.R1, it is evident that as early as

02.04.1991, notice has been sent under instructions to the petitioner and his Mother viz., the Judgment Debtor to the counsel for the Decree

Holder, which shows that the petitioners had full knowledge of the suit. Further, on perusal of Ex.R2, it is the agreement entered into between the

deceased Judgment Debtor and the Respondent/Decree Holder wherein the present petitioner had signed as a witness. Hence, it is evident that the

petitioner had full knowledge of the transactions between the deceased Judgment Debtor and the Decree Holder and resultantly, dismissed the

Application.

According to the Learned Counsel for the Revision Petitioner/Respondent/Petitioner, the order of the trial Court in dismissing E.A. No. 50 of

2004 dated 06.03.2007 is contrary to Law, weight of evidence and all probabilities of the case and in fact, the sole Defendant expired on

12.01.2003 and therefore, all the proceedings after his death was an invalid one and non est in the eye of Law.

It is the further contention on the side of the Revision Petitioner that the trial Court had failed to note that the Sale Deed was executed on behalf

of a dead person and the subsequent order of delivery is not a valid one since the same was passed against a dead individual.

Continuing further, the trial Court wrongly accepted the case of the Respondent/Decree Holder that he was not aware of the death of the

deceased sole Defendant and admittedly, the execution of the Sale Deed and the order of delivery took place after the demise of the sole

Defendant.

The gist of the contention of the Learned Counsel for the Revision Petitioner is that an Executing Court could not deliver a wrong and an excess

property to a Decree Holder and in fact, Ex.P1 Settlement Deed dated 28.11.2002 related to a larger extent than the Execution Petition

mentioned property, etc., and in any event, the Executing Court had not applied its judicial mind before passing the impugned order and

consequently, prays for Civil Revision Petition in the interest of justice.

In response, the Learned Counsel for the Respondent/Decree Holder supports the order passed by the Executing Court in E.A. No. 50 of

2004 dated 06.03.2007 and submits that the Executing Court came to the right conclusion that Ex.P1 Settlement Deed dated 28.11.2002 was not

a valid one executed by the Mother of the Revision Petitioner and therefore, prays for dismissal of the Civil Revision Petition in the interest of

justice.

The Learned Counsel for the Revision Petitioner/Petitioner cites the decision of the Honourable Supreme Court Pratibha Singh and Another Vs.

Shanti Devi Prasad and Another, , wherein it is held as follows:

...Where in a suit for specific performance of agreement to sell immovable property, the map of suit property was not annexed to plaint, and the

defendants who did not object to such fact promptly nor the trial Court insisted on such map and the map was filed for the first time in execution

proceedings, however, the draft sale deed accompanied by a notice requiring objections to be made by judgment-debtor as provided by Sub-rule

(2) of Rule 34 of Order 21 of the C.P.C. was not caused to be served by the Executing Court, and the judgment -debtors repeatedly insisted on

draft sale deed being delivered to them enabling objections being filed and there was no determination by the Executing Court that the immovable

property as delineated and demonstrated in the map accompanying the draft sale deed was the property forming subject-matter of agreement to

sell and the decree. The Supreme Court observing that it was S.47 which would be invoked in instant case, gave directions to Executing Court to

ascertain exact description of property.

He also relies on the decision of this Court Chandra and Anr. v. Venkatesan 2009 (2) CTC 160, wherein it is held as follows:

I am of the considered view that the delay should be condoned. It is also seen from a copy of the written statement filed by the petitioner that they

have admitted to the entitlement of the Respondent/Plaintiff to 1/3 of the suit property. Therefore, virtually, there is an admission on the part of the

petitioners and hence Mr. K.A. Ravindran, Learned Counsel for the respondent contended that the Court is again obliged to pass the same

decree.

It cannot be disputed that E.P. No. 142 of 2001 has been filed by the Respondent/Decree Holder before the Executing Court on 20.08.2001.

In the said Execution Petition, notice to Respondent/Judgment Debtor has been issued returnable by 05.11.2001. On 01.11.2002, the Executing

Court passed an order in E.P. No. 142 of 2001 stating that there is no merit in the counter filed by the Respondent/Judgment Debtor and directed

the execution of Sale Deed on behalf of the Judgment Debtor/Defendant in respect of the suit property. Only after passing of the orders in E.P.

No. 142 of 2001 on 01.11.2002, the Mother of the Revision Petitioner executed Ex.P1 Settlement Deed dated 28.11.2002 in favour of the

Revision Petitioner. Also, in E.A. No. 252 of 2003 filed by the Respondent/Decree Holder praying for Delivery, Delivery was ordered on

30.07.2003. However, E.A. No. 50 of 2004 has been filed by the Revision Petitioner herein before the Executing Court on 13.08.2003. Because

of the fact that no notice was issued to the Defendant/Judgment Debtor, the Respondent/Decree Holder would not have known the death of the

Revision Petitioner''s Mother Ellammal (Judgment Debtor/Defendant) during the period from 10.03.2003 to 05.09.2003.

Also, a scrutiny of Ex.R1 Lawyer''s Notice dated 02.04.1991 reveals that the Mother of the Revision Petitioner viz., Ellammal (Defendant)

and the Revision Petitioner had given instructions to their Lawyer to issue notice to the Respondent/Decree Holder, which clearly points out that

the Revision Petitioner had knowledge about the original suit 207 of 1991. Moreover, this Court opines that since the Revision Petitioner has

signed as a witness in Ex.R2 Certified xerox copy of Advance Agreement dated 12.02.1991 marked as Ex.A1 in the suit is an unfavourable

circumstances against the Revision Petitioner.

It is to be pointed out that the Respondent/Decree filed E.A. No. 127 of 2004 before the Executing Court to recognise one K. Thulasi

Singam, K. Rajagopal, Leelavathi, Nageswar, Ramachandran (the Revision Petitioner in C.R.P. No. 1225 of 2007) as legal heirs of the deceased

Judgment Debtor viz., K. Ellammal and impleaded them as Respondents 2 to 6 in E.P. No. 25 of 2004 and the said Application was allowed on

01.03.2005. Later, the Respondent/Decree Holder filed E.A. No. 28 of 2006 before the Executing Court seeking permission to amend E.P. No.

25 of 2004 as per the details of amendment furnished therein and the same was allowed on 27.04.2006. In E.P. No. 25 of 2004, the heirs 2 to 6

Deceased Judgment Debtor/Defendant Ellammal were arrayed as Nos. 2 to 6.

In E.P. No. 25 of 2004 (E.P. No. 142 of 2001), the Respondent/Decree Holder/Petitioner had sought the relief of the Judgment

Debtor/Defendant to execute the Sale Deed in favour of the Decree Holder failing which the Honourable Court ought to execute the Sale Deed in

favour of the Decree Holder on behalf of the Judgment Debtor/Defendant. Admittedly, E.P. No. 25 of 2004 (E.P. No. 142/2001) was filed under

Order 21 Rule 34 of Civil Procedure Code. The date of Decree of the suit O.S. No. 207 of 1991 was 11.06.2001. However, the date of death

of the deceased Judgment Debtor K. Ellammal was on 12.01.2003. E.P. No. 25 of 2004 (E.P. No. 142/2001) was closed on 24.06.2003

because of the fact that a registered Sale Deed was executed in favour of the Respondent/Decree Holder.

The term ''Representative'' in Section 47 of the CPC includes not only ''Legal Representatives'' in the meaning of Heirs, Executors or

Administrators but also ''Representative in Interest'' viz., any Transferees of the Judgment Debtor interest or any Transferee of the Decree Holders

interest who are bound by the Decree. Again, the term ''Representative'' as employed in Section 47 of the CPC means an individual in whom the

interest of a party to the suit has vested either by an act of the party (viz., a Transferee from the Party) or by an operation of Law which ordinarily

means and includes testamentary and intestate succession upon the death of the party to the suit, etc., In fact, the term ''Representative'' used in

Section 47 of the CPC is obviously much wider than the terms ''Legal Representative'' as mentioned in Section 50 of the Civil Procedure Code.

This Court aptly points out the decision Jaseentha Joseph Vs. Louis Neeklause, Cheppallil St. Joseph House, Patathanam Ward and Others, ,

wherein it is observed that in view of the enabling provision of Rule 22(2) of Order 21 if a notice is not issued it will not affect the jurisdiction. The

Court has power to dispense with issue of notice under Order 21 Rule 22. When Court has got such power, mere omission to record the reasons

by the Court will not invalidate the execution proceedings, etc.

It is to be borne in mind that the Executing Court has duty bound to give effect to the decree in its substance and ought not to pass any order

rendering the Judgment as a futile one. In construing the Decree, a Court of Law should lean towards construction rendering the Decree

executable. As a matter of fact, an Executing Court cannot go beyond the tenor of the Decree. Normally, an Executing Court must not interfere

with the Decree and executed the Decree as it stands, in the considered opinion of this Court.

It is useful for this Court to refer to the evidence of P.W.1 (First Revision Petitioner) to the effect that his Mother expired on 12.01.2003 and

that he has come to know presently that himself and his sisters have been added as Legal Representatives of his deceased Mother in the E.P.

Petition and that his Mother in respect of the suit property has executed a Settlement Deed in his favour on 28.11.2002 and that he is not aware of

the order passed by the Court as to the execution of Sale Deed. Moreover, P.W.1/First Revision Petitioner in his evidence has stated that the suit

property belonging to his Mother was bought by her out of her own income and that he was aware of O.S. No. 207 of 1991 details 5 years

before and that his Mother informed him that the case was over and that he had not engaged any Advocate to find out whether the suit was

actually over or not.

Admittedly, the Decree was passed in the main suit on 11.06.2001. Consequent to the death of the Civil Revision Petitioner''s Mother in the

main E.P., her heirs including the Civil Revision Petitioner was arrayed as Respondent Nos. 2 to 6 in the main execution proceedings as per order

in E.A. No. 28 of 2006 dated 27.04.2006, etc.

As far as the present case is concerned, Ex.P1 Settlement Deed dated 28.11.2002 was executed by the deceased Judgment

Debtor/Defendant viz., Ellammal in favour of her son viz., the Civil Revision Petitioner, after passing of the Decree on 11.06.2001 in the main suit

O.S. No. 207 of 1991.

In the instant case on hand, the Civil Revision Petitioner had categorically admitted in his evidence as P.W.1 before the Executing Court that he

was aware of O.S. No. 207 of 1991 details 5 years before and that his Mother had executed the Settlement Deed Ex.P1 dated 28.11.2002 in his

favour. From the evidence of P.W.1, it is candidly clear that the Revision Petitioner being an one of the legal heirs of the deceased Mother viz.,

Judgment Debtor was aware of the entire transaction between his Mother and the Respondent/Decree Holder. In law, an Executing Court is duty

bound to give effect to the Decree in its substance and must not pass any order rendering the judgment of the trial Court as an otiose one.

Inasmuch as Ex.P1 Settlement Deed dated 28.11.2002 after passing of the Decree dated 11.06.2001 certainly the said document was executed

by the Deceased Mother of the Civil Revision Petitioner (Judgment Debtor) in his favour only with the view to deprive the Respondent/Decree

Holder in enjoying the fruits of the Decree and because of the well settled principle of Law that a specific performance Decree obtained by a

Litigant/Party implies the Decree for possession and in that view of the matter, the Civil Revision Petitioner cannot lay a claim as per Ex.P1

Settlement Deed dated 28.11.2002 which is no nest in Law. Therefore, E.A. No. 50 of 2004 filed by the Revision Petitioner u/s 47 of the CPC is

per se not maintainable in law and resultantly, the Civil Revision Petition fails.

In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. The connected miscellaneous petition is closed.