Full Judgment Text
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CASE NO.:
Appeal (civil) 7541-7542 of 2001
PETITIONER:
V. HUCHESWARAN
RESPONDENT:
M/s. Madras Hardware Mart
DATE OF JUDGMENT: 18/10/2005
BENCH:
Dr.AR. Lakshmanan & Altamas Kabir
JUDGMENT:
J U D G M E N T
ALTAMAS KABIR,J.
O.S.No.683/1970 before the X Asstt.Judge, City
Civil Court, Madras was a partition suit in which a
preliminary decree for partition was passed on
28.4.1972 and was followed by a final decree for
partition on 1.12.1975. The 1st defendant in the suit
is the father and the 2nd , 3rd and 4th defendants and
the 1st plaintiff are the sons. The 1st plaintiff having
died, his legal representatives were brought on record
as plaintiffs in his place.
Several Civil Revision Petitions, being
C.R.P.Nos.711/1993, 4,5, and 7 of 1995, all arising out
of the aforesaid suit, were taken up for hearing and
disposal together by a learned single Judge of the
Madras High Court and were disposed of by his
judgment and order dated 22.11.1995.
The suit was in respect of a house property and by
the preliminary decree, the 1/5th share of each of the
parties was declared. By the final decree, the 1st
plaintiff and 2nd and 3rd defendants were directed to
sell their 3/5th share to the 1st and 4th defendants who
owned the remaining 2/5th share together. The 5th
defendant in the suit was a mortgagee under a
mortgage deed executed by the 1st defendant on
7.3.1970 in respect of his 1/5th share in the suit
property. By a subsequent deed, the 5th defendant
assigned the said mortgage to the 6th defendant on
24.7.1975. The 6th defendant, who was a tenant of a
portion of the said property, was not a party in the suit
originally, but he was subsequently impleaded and
brought on record as the 6th defendant.
The 1st defendant sold his 1/5th share to the 6th
defendant by a sale deed dated 16.5.1975. The 4th
defendant also sold his 1/5th share to the 6th defendant
by another sale deed dated 18.5.1975. In fact, these
sale deeds were executed prior to the passing of the
final decree for partition. After the final decree for
partition, the plaintiffs also sold their 1/5th share to the
6th defendant by a sale deed dated 16.2.1976 and soon
thereafter the 3rd defendant also sold his 1/5th share in
the suit property to the 6th defendant by a sale deed
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dated 3.3.1976. By virtue of the said conveyances, the
6th defendant became the owner of a 4/5th share in the
suit property. The 2nd defendant did not, however, sell
his 1/5th share in the suit property to the 6th defendant
despite the direction given in the final decree dated
1.12.1975. The 1st and 4th defendants, without filing
execution petition for obtaining sale deed pursuant to
the final decree, assigned their interest in the final
decree in favour of the 6th defendant on 25.1.1984.
After the said assignment, the 6th defendant filed
I.A.No.10085/1987 praying for engrossing the final
decree so that the execution petition could be filed for
executing the final decree. The said I.A. was allowed
on 23.2.1987 and the delay in depositing the required
stamp was condoned.
Subsequently, the 6th defendant filed execution
petition in December, 1990, beyond 12 years from the
date of the final decree for execution of the decree.
The said execution petition was filed against the 2nd
defendant/judgment debtor alone since all the other
co-sharers had transferred their respective interests in
the suit property in favour of the 6th defendant. By
Order dated 3.9.1981, the said execution application
was rejected on ground of limitation in view of the
period prescribed under Article 136 of the Limitation
Act.
The 6th defendant thereafter filed a Civil Revision
Petition No.711/1993 against the said order of rejection
making the 2nd defendant, V. Hutcheswaran, a party
in the execution petition. The said respondent filed
three separate Civil Revision Petitions namely, 4,5
and 7 of 1995 against the common Order dated
25.5.1992 whereby certain directions had been given
regarding collection of rents by the advocate receiver
and the deposit thereof with the 6th defendant in
respect of his 4/5th share in the suit property. As
indicated hereinabove, all the said applications were
taken up for hearing and disposal together by the
learned single Judge of the Madras High Court who by
his judgment and order dated 22.11.1995 allowed the
revision application filed by the 6th defendant upon
holding that the executing court had erred in rejecting
the execution application filed by the said 6th
defendant. The Order dated 3.9.1991 rejecting the
execution application was set aside and the matter was
remanded to the executing court for dealing with the
same on merits. Simultaneously, the three other Civil
Revision Petitions filed by the 2nd defendant, V.
Hutcheswaran, were dismissed with costs.
The present Special Leave Petitions are directed
against the said judgment and order of the learned
single Judge of the Madras High Court dated
22.11.1995.
As will appear from the record, leave was duly
granted on 2.11.2001 and the two appeals filed by the
2nd defendant, V. Hutcheswaran, were posted for final
hearing. During the course of the hearing, an
affidavit filed on behalf of the 6th defendant in SLP
(Civil) No.15893-94/96 was brought to our notice by
learned counsel for the respondent and it was pointed
out therefrom that after the judgment was delivered
in Civil Revision Petition No.711/1993, the 6th
defendant, as the decree holder, filed a petition, being
E.P.No. 5430/1995, for a direction upon the 2nd
defendant/judgment debtor for sale of his remaining
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1/5th share in the suit property. The same was taken
up for hearing and allowed by the Executing Court.
The judgment debtor challenged the said order before
the Addl.Judge, City Civil Court, Madras, by way of
C.M.A.No.168/1996, which was also allowed. The order
of the 1st appellate court was, however, set aside in
revision by the High Court in C.R.P.No.305/1997 and
the order passed by the executing court in
E.P.No.5430/1995 was restored. A Special Leave
Petition filed by the 2nd defendant/judgment debtor
against the said order in revision was subsequently
withdrawn on 31.8.1998. Consequently, a sale deed in
respect of the 1/5th share of the 2nd
defendant/judgment debtor was executed and
registered in favour of the 6th defendant/decree holder
on 5.2.1999 before the Sub Registrar, Sowcarpet,
Chennai. By virtue of the said sale deed, the 6th
defendant/decree holder became the owner of the
entire suit property and prayed for delivery of
possession of the property in occupation of the 2nd
defendant/judgment debtor before the City Civil Court,
Chennai. Pursuant to the orders passed by the said
court possession of the said portion of the property in
occupation of the 2nd defendant/judgment debtor was
delivered on 12.4.1999 to the 6th defendant/decree
holder, who is the respondent no.1 in the instant
Appeal, with the help of the court bailiff and the police
authorities.
In view of the said development, a rejoinder
affidavit appears to have been filed on behalf of the
2nd defendant/judgment debtor in the appeals on
26.10.2001, inter alia for restitution to the position he
was in before the filing of the execution application.
The said application was, in fact, taken up for hearing
along with the appeals.
Learned counsel appearing for the appellant
submitted that the learned single Judge of the Madras
High Court had erred in allowing the application filed
by the decree holder, being C.R.P.No.711/1993, under
Section 115 of the Code of Civil Procedure, in view of a
recent judgment of this Court in Hameed Joharan (D)
& Ors. vs. Abdul Salam (D) by LRs. & Ors., (2001) 7
SCC 573, in which the same point relating to
enforceability and/or executability of a final decree in a
partition suit was under consideration and it was held
that the period of limitation commenced from the date
of the decree and not from the date on which the
certified copy was made available.
Learned counsel further submitted that on the
strength of the said analogy, the order passed by the
learned single Judge condoning the delay in filing of
the execution petition was erroneous and was liable to
be set aside and consequently the 2nd
defendant/judgment debtor was entitled to
restitution.
It was also urged that on account of the error
committed by the court, the parties to a litigation
should not be made to suffer and since the 2nd
defendant/judgment debtor/appellant had been
dispossessed from the suit property by an order of the
court, he was entitled to restitution on account of the
maxim actus curiae neminem gravabit (an act of the
court shall prejudice no man).
In support of the said proposition, the learned
counsel referred to and relied on a decision of this
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Court in Prasanna Kumar Roy Karmakar vs. State of
West Bengal & Ors., (1996) 3 SCC 403, wherein the
said principle had been discussed and explained.
Learned counsel urged that in the interest of justice an
order for restitution should be made in favour of the 2nd
defendant/judgment debtor \026 appellant herein.
The submissions made on behalf of the appellant
were strenuously opposed on behalf of the
respondent/decree holder and it was submitted that it
was because of the recalcitrant attitude of the 2nd
defendant that the respondent/decree holder had to
take recourse to separate proceedings in the execution
case for the 1/5th share of the 2nd defendant in the suit
property to be transferred to him. It was submitted
that the delay in applying for execution of the final
decree was caused mainly by the acts of the 2nd
defendant/judgment debtor, the appellant.
It was also urged that since the decree
holder/respondent had become the full owner of the
suit property, the question of restitution would not
arise inasmuch as the judgment debtor/appellant did
not retain any interest in the suit property after his
share had been conveyed to the decree
holder/respondent. It was urged that the entire
submissions made on behalf of the judgment
debtor/appellant was an exercise in futility and
deserved to be rejected.
Having considered the submissions made on
behalf of the respective parties and having gone
through the materials on record, we are inclined to
accept the submissions made on behalf of the decree
holder/respondent. Having withdrawn the Special
Leave Petition which had been filed by him (appellant)
against the order by which his share in the suit
property had been conveyed to the decree
holder/respondent, the question of restitution to the
position prior to the execution of the decree does not
and/or cannot arise. In our view, the order passed by
the Madras High Court in C.R.P.No.305/1997 having
become final with the withdrawal of SLP ) No.
13522/1998, it is no longer open to the judgment
debtor/appellant to pray for restitution notwithstanding
the decision in the case of Hameed Joharan or that
of Prasanna Kumar Roy Karmakar (supra). The fact
situation is such that it does not call for any
interference with the impugned order passed by the
High Court at Madras and the instant appeals must,
therefore, fail and are dismissed.
There will, however, be no order as to costs.