V. Shanmugha Mudaliar vs Sankaran and Another

Srinivasan, J.—This case is an illustration for the oft-quoted saying that a litigant''s difficulties begin when he has obtained a decree. The

petitioner filed O.S. No. 923 of 1962 on the file of first Additional Judge, City Civil Court, Madras, for a declaration of his title and recovery of

possession. The suit was decreed on 3.3.1964. An appeal was filed by the fifth defendant in that suit in A.S. No. 311 of 1964 in this Court and it

was dismissed on 29.3.1971. The Petitioner filed E.P. No. 831 of 1981 for executing the decree. One Jawahar caused obstruction on the ground

that he had purchased the property from the judgment-debtor. An application was filed by the judgment-debtor herself u/s 47, C.P.C. for

dismissing the execution petition on the ground that the property sought to be taken delivery in execution was different from the property for which

the suit was decreed. That application was numbered as E.A. No. 6332 of 1981. It was dismissed for default on 12.2.1981. That order was

allowed to become final. The judgment-debtor died on 27.2.1988. The respondents herein were brought on record as the legal representatives of

the deceased judgment-debtor in E.A. No. 2755 of 1988.

In the meanwhile, the obstruction caused by the third party by name Jawahar was directed to be removed and he filed a suit in O.S. No. 786 of

1984 on the file of XII Assistant Judge, City Civil Court, Madras, for an injunction restraining the petitioner from executing the decree. He filed

I.A. No. 2002 of 1984 for injunction pending the suit and it was ordered by the trial Court. On appeal by the petitioner, the order of injunction

was set aside in C.M.A. No. 114 of 1984 on 4.2.1985. The obstructor filed C.R.P. No. 988 of 1985 in this Court against the said order. The

obstructor filed E.A. No. 5363 of 1984 for appointment of an Advocate-Commissioner to identify the property which was sought to be taken

delivery. That application was allowed by the executing Court. That order was challenged by the petitioner in C.R.P. No. 3121 of 1985 in this

Court. The obstructor had also filed I.A. No. 14188 of 1986 in O.S. No. 786 of 1984 for the appointment of a Surveyor-Commissioner for a

local inspection to identify the property which he was claiming. That application was allowed by the trial Court. That order was challenged by the

petitioner in C.R.P. No. 3368 of 1986. Both the C.R.P. Nos. 3121 of 1985 and 3368 of 1986 were heard together by Sathiadev, J., and he

passed orders on 22.12.1986. He dismissed the revision petitions, but made observations to the effect that the petitioner herein could have asked

for a report to be submitted by the Commissioner with the help and aid of either a District Surveyor or through a certified Surveyor. The other

revision petition filed by the obstructor viz., C.R.P. No. 988 of 1985 arising out of the order in C.M.A. No. 114 of 1984 was dismissed on the

same day by the same learned Judge.

Subsequent thereto, the Surveyor-Commissioner submitted a report on 11.3.1988 in the executing Court that the properties claimed by the

obstructor were the same as the properties which were the subject-matter in O.S. No. 923 of 1962 in which the petitioner obtained a decree.

Thus, the controversy raised by the obstructor as to the identity of the property was found against by the Surveyor-Commissioner, though the suit

is stated to be still pending.

In the execution proceedings after the respondents were brought on record as the legal representatives of the deceased judgment-debtor, they

filed an application for permission to file an additional counter. That application numbered as E.A. No. 5035 of 1990 was dismissed on

26.11.1990. That order was challenged by the respondents in this Court in C.R.P. No. 3289 of 1990 and it was dismissed on 13.12.1990.

On 26.11.1990 itself, the executing Court passed an order in E.A. No. 479 of 1984 directing the removal of the superstructure on the suit

property. In E.A. No. 480 of 1984, an order was passed permitting the decree-holder to have police aid. In E.A. No. 481 of 1984, an order for

breaking open the lock was passed. In E.P. No. 831 of 1981, the Court ordered delivery of possession as prayed for by the decree-holder.

On the very same day, i.e., 26.11.1990, the respondents herein filed E.A. No. 5705 of 1990 u/s 47, C.P.C., and E.A. No. 5704 of 1990 for

stay of delivery. In the application u/s 47, C.P.C., the allegation made by the respondents is that the property, which was the subject-matter of

E.P. No. 831 of 1981 was different from the suit property and that the petitioner was not entitled to execute the decree as against the said

property. It was also alleged that though the mother of the respondents, Le., the judgment-debtor clearly raised her defence in the suit the trial

Court failed to raise an issue on that aspect and considered the legal right of the judgment-debtor over the suit property and as such, the decree

passed in the suit was not executable against the respondents herein. Before proceeding further to refer to the application u/s 47, C.P.C., as a

matter of fact, I would refer to the filing of the appeal by the obstructor against the order of delivery dated 26.11.1990. The obstructor''s appeal

was taken on file as A.S. No. 339 of 1990 and he applied for stay in C.M.P. No. 140 of 1990, but that application for stay was dismissed on

12.12.1990.

The respondents filed E.A. No. 6309 of 1990 for stay of execution proceedings, even before their application u/s 47, C.P.C. was taken on file.

That application was dismissed on 26.11.1990 itself. The application filed by the respondents u/s 47, C.P.C. was numbered and taken on file as

E.A. No. 5705 of 1990. Their application for stay pending disposal of the application u/s 47, C.P.C. was numbered as E.A. No. 5704 of 1990.

Interim stay was granted on 10.12.1990. During the pendency of those applications, the respondents filed E.A. No. 5903 of 1990 for issuing

summons to the Tahsildar, Mambalam-Guindy Taluk, to produce the survey map of Kodambakkam village and give evidence before Court

regarding the identity of the property. That application was opposed by the petitioner. The executing Court allowed the application by an order

dated 18.12.1990 taking the view that interests of justice require that the records should be called for from the Tahsildar. It is the said order of the

executing Court which is challenged in this revision petition by the decree-holder.

Even the narration of the above facts proves clearly that the respondents are only making one attempt or the other to postpone the execution of

the decree and protract the proceedings as far as possible. They have been repeatedly indulging in taking out frivolous applications. Even the

application u/s 47, C.P.C. filed by the respondents and numbered as E.A. No. 5705 of 1990 is, on the face of it, unsustainable. When their

mother, who was the judgment-debtor in the suit, had herself filed an application in E.A. No. 6332 of 1981 on the same ground and allowed it to

be dismissed for default without taking any steps to restore the application to file for six years thereafter till her death, it is not open to the

respondents, who have come on record only as the legal representatives of the judgment-debtor to file a fresh application u/s 47, C.P.C. on the

very same ground. Apart from that, the respondents'' attempt to file an additional counter seeking to raise an independent plea was already

thwarted by the order of the Court in E.A. No. 5035 of 1990 on 26.11.1990. That order was confirmed by this Court in C.R.P. No. 3289 of

1990. Hence it is not open to the respondents to raise any other independent plea in the execution proceedings.

Thirdly, the plea raised by the respondents in E.A. No. 5705 of 1990 will not fall u/s 47, C.P.C. at all. After the executing court passed an

order for delivery in E.P. No. 831 of 1981, it is not open to the respondents to file a petition u/s 47, C.P.C. to contend that the property sought to

be proceeded against was Hot the subject-matter of the suit. The application is nothing but a vexatious proceedings.

Fourthly, on the facts, I have already referred to the report of the Surveyor-Commissioner filed on 11.3.1988 to the effect that the subject-

matter of the suit and the property against which the execution is proceeded are the same. In view of such a report, it is not at all necessary for the

executing Court to go through another roving enquiry as to whether the property proceeded against in execution is different from the property for

which the decree has been passed. There is absolutely no necessity for the executing Court to issue summons to the Tahsildar or any other official

to bring the records to Court, which is for the purpose of protracting the proceedings.

Fifthly, the application for amendment of the description of the property in the execution petition had been ordered by the executing Court in

E.A. No. 482 of 1984 on 26.11.1996. The judgment-debtor who lived for several years after the filing of the said application did not choose to

oppose that application. The order was passed only after the legal representatives of the judgment-debtor came on record and it is not open to

them to ignore the order and file an application u/s 47, C.P.C.

In the circumstances, the Civil Revision Petition is allowed with costs. Counsel''s fee Rs. 2,000.

I am told that the application u/s 47, C.P.C, viz., E.A. No. 5705 of 1990 is posted to 30.4.1991. In this matter, the decree was passed in the

suit in 1964 and affirmed on appeal by this Court in 1971. The execution petition has been pending from 1981. There is absolutely on justification

for the executing Court to post a frivolous application u/s 47, C.P.C, at the instance of the legal representatives of the judgment-debtor to

practically the last day before the closure of the court for summer recess. Hence, I direct the executing Court to advance the hearing of E.A. No.

5705 of 1990 to 22.3.91. The parties and counsel appearing for both parties are given notice hereby that E.A. No. 5705 of 1990 will be heard by

the executing Court on 22.3.91 and it is for them to make arrangements to be present in Court and argue the matter. The executing Court shall

dispose of the said application by passing appropriate orders on or before 12.4.91.