R. Venkataraman Vs R. Kumar

@JUDGMENTTAG-ORDER

K. Kalyanasundaram, J.@mdashThese civil revision petitions have been filed against the common order passed in E.A. Nos.132, 133, 134 and 135 of 2014 in E.P. No.3 of 2010 by the learned Principal District Judge, Chengalpattu.

2. The petitioner is the 3rd party to the suit in O.S. No.440 of 2006. The first respondent instituted the suit before the District Judge, Chengalpattu against the respondents 2 and 3 herein for specific performance of the agreement of sale dated 29.11.2005 and for mandatory injunction directing the second respondent to hand over the documents pertaining to the suit property to the plaintiff. The suit was decreed ex parte on 25.08.2009. The application filed by the first defendant in I.A. No.1518 of 2009 to set aside the ex parte decree was allowed by the trial court on 02.08.2010 on condition that she shall pay cost of Rs.1,000/- to the plaintiff on or before 16.08.2010. Due to non-compliance of the condition, the application was dismissed on 17.09.2010. The appeal filed against the order came to be dismissed by this court on 11.08.2013.

3. Based on the decree, the plaintiff laid an execution petition in E.P. No.9 of 2010. In the execution petition the petitioner filed E.A. Nos.132 to 135 of 2014 seeking opinion of a hand writing expert, to recall the ex parte decree dated 25.08.2009, to cancel the sale deed dated 18.12.2013, and for interim stay to the eviction proceedings contending that he is the absolute owner of the suit property; the second respondent who is his sister-in-law and an employee of the State Bank of India, fabricated a bogus sale deed bearing Document No.2086 of 2002 at Sub Registrar Office, Pammal, South Chennai by impersonation and playing fraud on the petitioner. The petitioner further contended that he never executed any sale deed nor received any consideration; that the respondents 2 and 3 acted hand in glow and fabricated the sale agreement in collusion and connivance and obtained ex parte decree in the suit and that since the decree itself is a nullity, the 2nd respondent cannot claim any right over the property, through the sale deed dated 18.12.2013.

4. The applications were resisted by the first respondent stating that he is bonafide purchaser and as per the decree in O.S. No.440 of 2006, he is entitled for possession of the property. The executing court dismissed the applications by a common order dated 08.08.2014. Aggrieved by the order the present petitions have been filed.

5. Mr.V.Ragavachari learned counsel for the petitioner submitted that the respondents 1 and 2 have played fraud upon the court and also on the petitioner, but the executing court has not determined the right of the parties in the manner known to law. The counsel further submitted that the petitioner has ample evidence to establish that the second respondent by impersonation had registered the sale deed in her favour in the year 2002 and the grievance of the petitioner was not properly investigated by the executing court. The learned counsel has relied on the judgments reported in Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, , in support of his contention.

6. Mr.R.Thiagarajan learned counsel for the respondent would submit that the petitioner makes so many wide and serious allegations against the respondents, but he has not produced any evidence to substantiate the same; that the petitioner seeks opinion of the hand writing expert, but he has not produced any documents containing the admitted signature of the petitioner to enable the court for getting opinion from the hand writing expert. It is further contended that the petitioner has not examined himself as a witness in this case; that as per Order 6 Rule 4 there should be specific pleading with regard to the allegations of fraud, but in this case except vague and bald allegations nothing specifically stated about the fraud committed by the respondent.

7. The learned counsel for the respondents further submitted that the second respondent purchased the suit property for a valuable sale consideration and based on the decree the court has executed the sale deed on 18.12.2013 and the decree holder had also taken possession of the suit property on 10.09.2014 and the execution petition was also terminated. It is further submitted that nothing survives in the revision petition.

8. In Surajdeo Vs. Board of Revenue, U.P., Allahabad and Others, and in M.P. Kanoi and 4 others vs. Mr. Palani Prop. M.P. Builders ( 2001 (3) CTC 452) it has been held that even a stranger/3rd party to the suit can file application under Order 9 Rule 13 seeking to set aside the ex parte decree.

9. The Hon''ble Supreme Court in Bhanwar Lal Vs. Satyanarain and another, held that the decree holder gets a right under Rule 97 of Order 21 C.P.C, to make an application against 3rd party to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the decree holder to make an application for removal of the obstruction or resistance by such person.

10. This court in Syed Akbar Vs. A. Raheela Ismail and Another, held that mere recording of delivery of property not a bar to invoke Order 21 Rule 99 seeking for restitution if at all factual or legal, he is entitled to claim such remedy.

11. In A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, and in Smt. Badami (Deceased) By her L.Rs. Vs. Bhali, the Hon''ble Supreme Court has held that the judgment and decree obtained by playing fraud would be a nullity, which can be challenged in any court, at any time in appeal, revision, writ or even in collateral proceedings.

12. It is seen from the records that the second respondent claims right over the suit property through a registered sale deed dated 13.11.2002. Though the petitioner issued a notice through his Advocate dated 25.05.2004 and made complaints to the 3rd respondent and the officials of the second respondent, alleging forgery and impersonation, but he had not taken any action to set aside the sale. The documents referred by the petitioner would show that he had knowledge about the sale deed even in the year 2004. The letter of the Sub Inspector of Police, Central Crime Branch issued to the petitioner would reveal that the first respondent had lodged a complaint to the Central Crime Branch, Chennai and the same was registered against the 2nd respondent in Crime No. 54 of 2006 under Section 420 of IPC.

13. As rightly contended by the learned counsel for the respondent, the petitioner has not produced documents containing his admitted signature for opinion of the hand writing expert. Further the petitioner has not produced any material to substantiate his allegations. In the above facts, the judgments referred supra are not helpful to the petitioner.

14. The learned counsel for the petitioner submitted that the applications were filed on 05.02.2014, the respondent filed his counter on 14.07.2014 and without affording an opportunity to the petitioner the executing court dismissed the applications on 08.08.2014. It is not the case of the petitioner that he wanted to let in evidence and the same was rejected by the executing court. Therefore, I am not able to agree with the contention of the counsel for the petitioner that the petitioner was not given opportunity by the executing court.

15. The suit and the criminal proceedings initiated by the first respondent against the second respondent would prove that there was no collusion between them in getting decree in the suit. The executing court has rightly dismissed the applications of the petitioner giving liberty to workout his remedy against the second respondent by filing separate suit. I do not find any merits in these revision petitions.

In the result, these civil revision petitions are dismissed. No cost. Connected miscellaneous petitions are closed.