Venkatesan vs E. Dhavamani and Others

M. Venugopal, J.—The Revision Petitioner/Petitioner/8th Respondent has filed this Civil Revision Petition as against the order dated

15.11.2008 in E.A. No. 4151 of 2008 in E.P. No. 801 of 2008 passed by the Learned IX Assistant Judge, City Civil Court, Chennai.

The Executing Court, while passing orders in E.A. No. 4151 of 2008, has, among other things, observed that ''...The High Court had held that

the petitioners has to file a separate suit for declaration of his right. Hence this Court has no jurisdiction to set aside the order and resultantly,

dismissed the application.''

According to the Learned Counsel for the Revision Petitioner, the order of the Executing Court in E.A. No. 4151 of 2008 dated 15.11.2008 is

contrary to law, weight of evidence and against the ratio laid down by this Court and the Honourable Supreme Court and further that the impugned

order passed by the Executing Court is a cryptic and non-speaking one and the same suffers from total non-application of mind.

It is the further contention on the side of the Revision Petitioner that the Executing Court dismissed the petition to set aside the Ex parte order in

rendering a finding that the petitioner is the subsequent purchaser pending suit from the other defendants.

Besides the above, the Learned Counsel for the Revision Petitioner contends that the Petitioner has the right to contest the Execution Petition by

filing his counter and in fact, the Petitioner has no other option except to approach this Court in law and therefore, prays for allowing the Civil

Revision Petition in the interest of justice.

However, the Learned Counsel for the Respondents submits that the ''order of delivery'' has been passed on merits and E.A. No. 4151 of 2008

lacks bona fides and that the Executing Court has taken note of the entire gamut of the facts and circumstances of the case in a cumulative fashion

and rightly dismissed the Execution Application and as such, the Civil Revision Petition has to be dismissed by this Court.

In support of the contention that the present Civil Revision Petition is maintainable as against the order dated 15.11.2008 in E.A. No. 4151 of

2008 (filed under Order 21 Rule 106 of C.P.C.) in E.P. No. 801 of 2008 passed by the Executing Court, the Learned Counsel for the Revision

Petitioner relies on the decision in Jonna Ramu Naidu Vs. Smt. Kancherla Satyavatamma wherein at paragraph 7 it is observed as follows:

Under Order 43 Rule 1 of the Code, only certain orders under Order 21 of the Code are appealable and not the other orders, i.e. the orders

specified in Order 43 Rule 1, (i), (j), and (ja). The order passed under Order 21 Rule 32 of the Code is not a decree within the definition of

decree u/s 2(2) of the Code and hence no appeal lies as against such an order either under Order 41 or u/s 96 of the Code.

He also cites the decision of this Court in K.V. Balu v. Padma Duraisamy 2008 (4) TLNJ 269 (Civil) wherein at para 3 it is observed as

follows:

I see considerable force in the submissions made by the learned Senior Counsel for the petitioner. Order 43 Rule 1(ja) specifically provides that, if

the order is passed rejecting the application under Order 21 Rule 106 C.P.C., the aggrieved party shall have the right to approach the higher forum

for getting the relief which is prescribed for the order passed in the original application, namely, any order passed in any of the provisions contained

in Order 21 of the CPC etc.

In response, the Learned Counsel for the Respondents cites the decision of Honourable Supreme Court in Usha Sinha v. Dina Ram and Ors.

(2008) 5 MLJ 957 wherein it is held that ''the appellant, purchaser of property pendente lite has no right to offer resistance/cause obstruction and

her right not crystalised in a decree etc.''

He also relies on the decision in Sk. Saiful Nandlal and Ors. v. Sk. Akkas Ali AIR 1998 Calcutta 137 wherein it is held that ''order

adjudicating resistance to possession of immovable property is open to appeal and that the revision is not maintainable.''

He brings it to the notice of this Court to the decision in M.S. Mansoor Deen and 5 Ors. v. Fathimuthu Beevi and 7 Ors. 2009 (4) CTC 489

at page 497 wherein it is observed as follows:

On a careful consideration of respective contentions, this Court is of the considered view that the transferees pendente lite from the judgment

debtors have no independent right in the teeth of Section 52 of Transfer of Property Act, 1882 and they cannot resist the execution and in lieu of

the fact that since under the Doctrine of Lis Pendens a decree passed in the suit during the pendency of which transfers are made bind the

transferees the application filed by the original decree holder/petitioner in E.A. No. 766 of 2000 and later continued by his legal representatives (by

virtue of their impleading as per Order dated 06.7.2004 in E.A. No. 788 of 2003) praying for removal of obstruction under Order 21 Rule 97 in

regard to the delivery of execution of petition mentioned property etc., is perfectly valid in law and inasmuch as when the revision petitioners have

purchased the properties pending suit and later constructed buildings, the order of the Executing Court dated 21.4.2008 in allowing the E.A. No.

766 of 2000 does not suffer from any serious infirmity or patent illegality in the eye of law and as such, the same does not require any interference

by this Court and consequently, the revision petitions fail.

In M. Ponnupandian Vs. Selvabakiyam and Others, this Court has observed as follows:

...As per C.P.C., Act 104 of 1976 under Order XXI Rule 106(3) an application under Sub-rule (1) shall be made within 30 days from the

date of the order or where in the case of an Ex parte order the notice was not duly served, within 30 days from the date when the applicant had

knowledge of the order. Therefore, the amendment inserted by Madras (Pondicherry) Amendment, extracted above with reference to Rules

105(3) and 105(4) which in fact was deleted by the amendment of this Court as stated above have not been incorporated in the C.P.C. as

amended (Act 104 of 1976). So, it cannot be said that the provisions of the Limitation Act, 1908 are applicable to proceedings by virtue of the

Order XXI Rule 105(4) and despite the fact it has been made clear u/s 5 of Limitation Act that the extension of prescribed period in certain cases

cannot be availed of by the application made under Order XXI of Civil Procedure Code, 1908.

At this juncture, this Court worth recalls the decision in Akula Ramulu and Ors. v. Kammari Balaram and Anr. 2003 AIHC 2538 at page

2539 wherein it is held as follows:

Where the assignee of the Govt. land got a decree for title and possession of said land from the defendant the objection to executability of the said

decree by the appellant heirs of the defendant on the basis of the alleged cancellation of said assignment by revenue authorities, was unsustainable.

The objection raised by persons who are not parties to the decree or those who do not claim through the parties to the suit, cannot seek

adjudication of their rights u/s 47, Civil P.C. (1908). Though the appellants are sons and wife of the 2nd respondent, who is defendant in the suit,

they do not claim the right through him. They based their claim on the so called assignment in their favour. Also from the reading of the provisions

under Rules 97, 98 and 102 of Order 21, Civil P.C., it is evident that any transfers that take place during the pendency of the suit or subsequent

thereto to be ignored outright by the executing Court. The explanation to Rule 102 goes to the extent of requiring the executing Court to ignore

even those transfers, which take place by operation of law. The so called assignment in favour of the appellants herein, even if taken to be true and

legal, cannot be placed on a higher pedestal than a transfer by operation of law.

The stand of the Respondents is that pursuant to the passing of the final decree on 12.11.2003 and dismissal of the CRP. Nos. 195 & 196 of

2008 on 19.02.2008, the Respondents filed E.P. No. 801 of 2008 seeking delivery of possession of the suit property and that a plea has been

taken before the Executing Court that the Revision Petitioner being of lis pendens purchaser has no locus standi to resist the Execution Proceedings

in view of the dismissal of CRP. Nos. 195 & 196 of 2008 dated 19.02.2008 and the Executing Court after perusing the records has passed

orders of allowing the Executing Petition on 20.06.2008 and order delivery by 06.08.2008. Also, a lis pendens purchaser Mrs. Rajalakshmi has

filed E.A. No. 7311 & 8079 of 2008 will also take advantage in Execution Proceedings to resist the Execution of the Court Warrant in taking

delivery of possession of the suit property and therefore, the Civil Revision Petition No. 1165 of 2009 has to be dismissed.

It cannot be forgotten that in CRP. Nos. 195 & 196 of 2008 this Court on 19.02.2008 has observed that remedy open to the Revision

Petitioner is only against his vendors and not against the present Respondents/Plaintiffs.

Rule 106 of Order 21 of CPC no doubt enjoins the Court to set aside the orders passed under Sub-rules (2) and (3) of the Rule 105, if a

litigant adversely affected by such order shows sufficient cause for his non-appearance when the application has been called for hearing.

A perusal of the Executing Court''s Notes Paper dated 04.6.2008 in E.P. No. 801 of 2008 in O.S. No. 4747 of 1977 shows that there is an

endorsement that ''counsel for DH present, counsel for JD-10 present at request the time has been extended till 20.6.2008 and for JD 4 to 9 - no

rep. Set Ex parte'' and signed by the learned Judge. However, on 20.6.2008 when the main Execution Petition has been posted for JD-10''s

counter, the Executing Court has passed a detailed order thereby allowing the petition and ordered delivery by 6.8.2008 and directed the batta to

be paid in three days. Obviously, the Executing Court has passed a detailed order on the basis of the memo filed by the counsel for the Decree

Holder along with the order passed in C.R.P. Nos. 195 & 196 of 2008 which was dismissed by the High Court. A perusal of the said detailed

order indicates that C.R.P. Nos. 195 & 196 of 2008 have been dismissed with an observation that in the partition if the vendor of R-10 is

allowed, any share he can file suit for declaration of his title to the share in the suit property. Hence, the Executing Court has opined that it need not

consider any representation for R-10 since he has no locus standi and again attracts the Principles of Section 52 of the Transfer of Property Act

''lis pendens'' and the Principles of ''Buyer Beware of Contract''. Further, the Executing Court has to execute the decree and there shall not be any

roving enquiry and that all other Respondents had remained Ex parte etc.

The term ''Natural Justice'' stands for Justice according to Conscience. Indeed, the Philosopher Seneca [about 4 B.C. - A.D. 56] who was the

Tutor to the Emperor Nero says that ''Both sides must be heard''. In Vionet v. Barrett (1885) 55 LJ QB 39 at page 45 Lord Fisher observed that

''Natural Justice'' is the natural sense of what is right and wrong.

The Principles of Natural Justice are binding in every Age and on all man kind. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and

Another, , the Honourable Supreme Court has held that ''the violation of Natural Justice affects the fundamental rights under Article 14 and 16 of

the Constitution of India.

It is well accepted principle in law that in no person accused of any charge of likely to suffer any civil consequences, must be adjudged. Unless

he has notice of the proceedings and he has had an opportunity of projecting his case in full [Audi Alteram Partem]. A Competent Court of Law is

bound to decide the restoration application on merits. In the present case before us, in main E.P. No. 801 of 2008 the Civil Revision Petitioner

was not set Ex parte in express words. Also, the Executing Court has not recorded on 20.6.2008 in E.P. No. 801 of 2008 that the Petitioner has

not appeared before it. Even though the Executing Court has not used the term ''Ex parte'' in its order on 20.6.2008 in E.P. No. 801 of 2008

insofar as it relates to the Civil Revision Petitioner/JD-10 is concerned, yet the said order must be construed as an Ex parte order against the Civil

Revision Petitioner, since he has been deprived of the due opportunity to file his counter, notwithstanding the fact that he is a lis pendens purchaser.

When the Executing Court has posted the Execution Petition No. 801 of 2008 on 20.6.2008 for filing of the counter of JD-10 (Revision

Petitioner in C.R.P. No. 1165 of 2009), even though he is a lis pendens purchaser, yet the Principles of Natural Justice require that due

opportunity must be given to him to project his counter in main Execution Petition and also to adduce oral and documentary evidence if any, in the

considered opinion of this Court. In the instant case, that Principles of Natural Justice have not been adhered to by the Executing Court, while

passing the order of delivery in the main Execution Petition on 20.6.2008 and when the Executing Court has passed the orders of delivery without

receiving the counter to be filed by the Revision Petitioner/JD-10, then it clearly amounts to an Ex parte order being passed against him dehors the

merits of the matter in issue etc.

If sufficient cause is shown by a party, then the Ex parte order passed by a Court of Law against him can be set aside even exercising its

inherent powers u/s 151 of CPC in the absence of a specific provision under Code of Civil Procedure. In the present case on hand, the Revision

Petitioner/JD-10 has made out a case by stating that even though earlier he was given time to file counter in main E.P. No. 801 of 2008 on

4.6.2008 and later when the matter has been posted on 20.6.2008, without receiving his counter, the impugned order of delivery has been passed.

Therefore, the views taken by the Executing Court in E.A. No. 4151 of 2008 dated 15.11.2008 to the effect that ""the High Court has held that the

Petitioner has to file a separate suit for declaration of his right. Hence, this Court has no jurisdiction to set aside the order of this Court. Hence, in

the interest of justice, the petition is to be dismissed. In the result, the petition is dismissed"" are all not correct. Likewise, the Ex parte order passed

by the Executing Court in E.P. No. 801 of 2008 dated 20.6.2008 ordering delivery insofar as it relates to the Revision Petitioner/JD-10 without

providing him an opportunity of filing a counter is not a correct one in the eye of law and therefore, this Court is perforced to interfere with the

orders passed by the Executing Court in E.A. No. 4151 of 2008 dated 15.11.2008 and in E.P. No. 801 of 2008 dated 20.6.2008 and set aside

both the orders to prevent an aberration of justice and resultantly, allows the Civil Revision Petition.

In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Resultantly, the orders passed by the Executing

Court in E.A. No. 4151 of 2008 dated 15.11.2008 and E.P. No. 801 of 2008 dated 20.6.2008 are set aside for the reasons assigned by this

Court in this Revision. The Revision Petitioner/JD-10 is directed to file his counter before the Executing Court in E.P. No. 801 of 2008 within a

period of one week from the date of receipt of copy of this order and thereafter, the Executing Court is directed to pass orders on merits,

[uninfluenced with any of the observations made by this Court in this Revision], after providing due opportunities to the parties, within a period of

two weeks from the date of receipt of copy of this order and to report compliance to this Court without fail. Consequently, connected

miscellaneous petition is closed.