M. Gopinathan Pillai Vs K. Radhakrishnan

@JUDGMENTTAG-ORDER

S. Vimala, J.@mdashThis Civil Revision Petition has been filed by the person claiming under the judgment debtor/third party, challenging the dismissal of the Obstruction Petition filed under Order 21 Rule 97 of the Code of Civil Procedure.

1.1. Respondents 1 to 4, as decree holders, have filed E.P. No. 307 of 2008 seeking delivery of possession of 30 cents of immovable property from the judgment debtors/respondents 5 to 9 herein, as per the terms of the decree made in O.S. No. 898 of 1983.

1.2. Respondents 1 to 4 are legal heirs of the original decree holder in O.S. No. 898 of 1983, who died on 21.01.1996, during the pendency of the first appeal. Respondents 5 to 9 are the legal heirs of one Ramakrishnan Pillai, the sole defendant in the said suit as well as the sole plaintiff in the connected suit in O.S. No. 3080 of 1982. Ramakrishnan Pillai died on 04.12.2004.

1.3. The suit in O.S. No. 898 of 1983 was decreed and the suit in O.S. No. 3080 of 1982 was ultimately dismissed.

2. Based upon the decree in O.S. No. 898 of 1983, an Execution Petition was filed in E.P. No. 307 of 2008, seeking recovery of 30 cents of immovable property from respondents 5 to 9.

2.1. The Judgment debtors/respondents 5 to 9 herein have filed a Petition under Section 47 CPC, in E.A. No. 40 of 2011 in E.P. No. 307 of 2008 and it was dismissed by the order, dated 22.01.2011.

2.2. The main ground of challenge in the said E.A. was regarding in-executability of the decree on the ground that even though the decree was for 30 cents of land, the original decree-holder, Palaniammal, had sold 15 cents of land comprised in the decree and therefore, it cannot be executed.

2.3. After considering the respective contentions, the Executing Court has dismissed the petition.

2.4. Challenging the dismissal, a Civil Revision Petition in C.R.P. No. 1826 of 2013 was filed before this Court and it was dismissed. While dismissing the said Civil Revision Petition, there was an observation that, as per the Commissioner''s report, the extent of property available was only 10 cents. The original decree-holder had submitted that the decree-holder would be satisfied with 10 cents of land, if delivered after execution, and after recording all the findings, the said Civil Revision Petition has been dismissed.

3. The third party claims right only under the judgment-debtors/respondents 5 to 9 herein, based upon the sale agreement, and the judgment debtors/respondents 5 to 9 herein, having not been successful in prosecuting petition under Section 47 CPC, have set up the third parties is the finding of the Executing Court.

3.1. Therefore, what cannot be achieved directly by respondents 5 to 9 cannot be indirectly achieved by the third parties, who are claiming under respondents 5 to 9 is the contention of the decree holder,

4. Raising a contention that the judgment debtor is entitled to question execution on ground of want of identification of the property, the learned counsel for the petitioner/third party relies upon the following decisions:-

(i) (1982) 2 Supreme Court Cases 456 (Shafiqur Rehman Khan and another v. Smt. Mohammad Jahan Begum and Others):-

Order 21, Rule 35 If decree-holder satisfactorily establishes identity of the property for which the decree was passed, the decree must be executed and decree-holder put in possession of the property. Judgment debtor entitled to question execution on ground of want of identification of the property.

4.1. This judgment, Shafiqur Rehman Khan''s case is not applicable to the facts of this case, as there is no dispute with regard to identification of the property. The Court, which was dealing with the Execution Petition, has given a finding that the Commissioner''s report contains four boundaries and if there is variation in respect of the extent, the boundaries will prevail over the survey number and therefore, there is no dispute with regard to identification of the property.

(ii) Shreenath and Another Vs. Rajesh and Others, :-

13. A tenant or any person claiming a right in the properties on his own, if resists delivery of possession to decree holder, the dispute and his claim has to be decided after the Amendment, under R. 97 read with R. 101.

4.2. This (Shreenath''s case) is a case where the third party is claiming right on his own, and not claiming right under the judgment-debtor, whose petition under Section 47 CPC, has already been dismissed. Hence, this decision is also not applicable to the facts of this case.

(iii) Union Bank of India Vs. S. Liakat Ali, Askar Ali and P.S.I. Merchandisers, :-

5. Both the trial court as well as the appellate court incorrectly framed an important issue, which enabled the litigation to breath life for 21 years. The issue framed is this:-

Whether the suit promissory note is not supported by consideration?

6. Pleadings and issues are sine-qua-non in a civil litigation. Based upon pleadings, appropriate and proper issues have to be framed. Otherwise, focus of the litigation is bound to take a detour.

7. When the issues are properly and fairly framed it has got manifold advantage. (i) It is beneficial to the parties themselves to know exactly what are the matters left in dispute i.e., what is admitted and what is disputed. (ii) It helps the parties to know precisely what facts they must be prove at the trial. (iii) It helps the parties to find out whether the dispute revolves around the question of fact or question of law.

4.3. The issues regarding pleadings and non-framing of proper issues cannot be agitated during the course of execution. Therefore, this decision will not be helpful to the case of the petitioner/third party.

(iv) S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, :-

7......The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who''s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

8.....Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.

4.4. So far as this defence is concerned, this defence is available to the parties to the litigation. The judgment-debtors who had the opportunity to contest the case on this ground, has already contested the matter and at the level of this Court, the petition has already been dismissed. The defence that the decree was obtained by suppression of material facts or material documents is not a defence open to a party, who is not a party to the litigation, but claiming only under the judgment-debtors. When the judgment-debtors themselves have taken up the responsibility of challenging the decree and when the challenge to the executability of the decree has been negatived, the party, claiming under the same judgment debtor cannot agitate the same issue saying that the decree obtained is not valid. Especially, when the third party is only an agreement holder having no perfect right over the property cannot maintain an application for Obstruction as per the decision reported in Donna Rossi Kitchen Line, Mrs. Remani S. Kumar Vs. D. Harikrishnan and M/s. Farwood Industries, , where-under it has been held that third party cannot maintain application under Order 21 Rule 97 CPC by claiming himself as an Obstructer.

4.5. In fact, such claim petitions/objection petitions have been held not to be adjudicated, as per the decision reported in Thirugnanasambandam Vs. Sundaramurthy Chettiar, wherein, in the said decision, it has been held thus:-

11. Even though a number of judgments have been cited in support of the contentions raised on both sides, it is unnecessary to refer to all those judgments and it will be sufficient to make a reference to the latest judgments of a single judge of this court and a Division Bench of this court and a judgment of the Supreme Court.

In Vijayalakshmi Leather Industries (P) Ltd. Vs. K. Narayanan, Lalitha, Venkatanarayanan, Murali, Sumithra and Selvi, , a Division Bench of this court held that a transferee from the judgment debtor occurring in Rules 98 and 108 of Order XXI of CPC would include a transferee of a transferee from the judgment debtor and he is bound by the ultimate decision in view of section 52 of the Transfer of Property Act, 1882, since the transfer of property had been made pendente lite. The relevant paragraphs are extracted here under:

"12. As already stated, the contention of the learned counsel for the appellant cannot be accepted. When Section 52 of the Transfer of Property Act makes it clear that no party to the proceeding can transfer any property which is the subject matter of litigation, the transferee from the party to the proceeding or the judgment debtor cannot have any valid independent title than that of the judgment debtor. Hence, the transfer made by one of the parties to the proceeding pendente lite is subject to the result of the litigation and there is no absolute transfer of right or title in favour of the transferee. Hence, by way of subsequent transfers, such subsequent transferee can derive whatever the right their transferor i.e., the transferee from the judgment-debtor or the party to the proceeding had and nothing more. When the transferee from the judgment-debtor has no absolute or perfect title and the rights being subject to the result of the litigation, it is not known as to how the transferee from the transferee of the judgment-debtor can have a better right then his vendor or his vendor''s vendor.

.....

12. The Hon''ble Supreme Court also dealt with the same question in Usha Sinha Vs. Dina Ram and Others, . The following were the observations made in the said case.

......"

"It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent court. The doctrine of "lis pendens" prohibits a party from dealing with the property which is the subject-matter of suit. "Lis pendens" itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment-debtor, he cannot seek benefit of Rules 98 or 100 of Order 21."

5. Therefore, it is clear that what cannot be achieved directly by respondents 5 to 9 cannot be indirectly achieved by the persons, who are claiming under respondents 5 to 9. The well considered order in E.A. No. 280 of 2013 of the Executing Court cannot be interfered with as it is based on reasons which are convincing and acceptable. It is clear that the claim made by the third party has to be dismissed and it has been rightly dismissed by the Executing Court. Therefore, the Revision petition has no merits and it deserves to be dismissed.

6. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.