CORAMTHE HONOURABLE MR v. V.Subramanyan2.G.Srinivasan3.G.Venugopal4.Vatsala Ravi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14-6-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMCRP NPD No.1459 of 2006andMP No.1 of 2006Estate of Venkatesa Sarmarep. By its Executive Rama Devi (since deceased)by L.Rs.1.V.Subramanyan2.V.Kausalya (died) by LRs3.K.Rohini4.K.Kalyani5.N.Narasimhan.. Petitioners/PetitionersDecree Holders 3 to 6vs1.V.Subramanyan2.G.Srinivasan3.G.Venugopal4.Vatsala Ravi.. Respondents/Respondents Ist Decree Holder & Judgment Debtors(R2 to R4 are given up for Notice)Civil revision petition preferred under Article 227 of theConstitution of India against the order dated 25.9.2006 passed inE.A.SR.No.37749 of 2006 in E.P.No.2248 of 2001 in O.S.No.3461 of 1972 onthe file of the X Assistant City Civil Judge, Chennai.For Petitioners: Mr.A.S.NarasimhanFor Respondents: Mr.K.V.Ananthakrishnan for R1 RR2 to 4 – Given upORDERChallenge is made to an order of rejection of an executionapplication seeking to record the full satisfaction of the decree inE.P.No.2248 of 2001 in O.S.No.3461/72 and terminate the said E.P.2.Pending the E.P., the instant application which was rejected by thesaid Court, had been filed. The legal representatives of the secondpetitioner Kausalya, are the petitioners 3 to 5 herein. The petitioners 3to 5 will be hereinafter referred to as the petitioners. https://hcservices.ecourts.gov.in/hcservices/

3.The petitioners filed the said application alleging that theyoriginally filed an application to implead them as legal representativesof the second decree holder, their mother namely Smt.Kausalya; that thesaid application was contested; but, they were directed to be impleaded asjoint decree holders; that pursuant to the said order, the firstrespondent-decree holder amended the execution petition; that theproperties belonged to one Venkatesa Sharma; that he executed a Will on11.5.73 in which the property mentioned in the execution petition schedulewas first bequeathed to the other petitioner V.Subramaniam along withanother house property and a disputed land; that at that time, there was adispute between Venkatesa Sharma and the first petitioner; that thetestator Venkatessa Sharma the father of the first petitioner, expectedhis son to resolve the dispute with him; but, it did not take place; thattherefore, Venkatesa Sharma executed a codicil on 25.1.1974 in which thevesting of the properties to V.Subramaniam is subject to the conditionthat he should resolve the dispute before his death; otherwise, theproperties should go to the other daughters; that Subramaniam did notsettle the dispute with his father during his life time and continued itthereafter also by challenging the validity of the will executed by him,when the executrix filed O.P.No.531 of 1980 due to which the O.P. wasconverted as TOS No.34/82; that the same was dismissed in the year 1985;that a probate was granted to the executrix on 3.5.1985; that theexecutrix died on 2.9.1986 not only without completing the administrationof Venkatesa Sharma's Estate but also without disposing of the right ofher property and about the executrix ship; that under the circumstances,Subramaniam filed O.P.No.533 of 1986, and he was appointed as theAdministrator; that however, in respect of the properties of Ramadevi, themother of the petitioner Kalyani was appointed as one of the executors ofRamadevi's estate; that while Venkatesa Sharma was alive, he instituted asuit in which a decree was passed in S.A.No.809/84 which was beingexecuted; that after the institution of the suit in O.S.No.3461/72,Venekatesa Sharma died in 1978; that under the circumstances, Ramadevi,who got appointed as executrix in O.P.No.531/80 , got impleaded in thesuit; that later she died in 1986; that in the place of the executrix,Subramaniam was appointed as Administrator and the petitioner Kalyani'smother was also along with the other Administrator of Ramadevi'sproperties; that the said Subramaniam did not resolve with the father;but, he wanted to grab the property as his own, contrary to the bequestmade; that the first petitioner, who was the only Administrator ofVenkatesa Sharma's Estate, had filed the E.P. without impleading theadministrator of late Ramadevi; that Ramadevi's administrators alone havemajor right in the property; that they were appointed as administrators;that the petitioners herein as legal representatives of Kausalya andGovindarajan, son of Suseela, have a share of 58.33% in the property; thatby virtue of the ownership and as the decree holders in S.A.No.809/84, toavoid the dispute one Rajalakshmi who was only the Headmistress of theschool functioning under the Rajalakshmi Educational Trust through theirtrustees who are the respondents in the E.P., surrendered possession tothe petitioners and their maternal aunt's son on 25.4.2005; thatsubsequently, when the petitioners sold the property to Rajasthani JainSamaj Educational Trust, the respondents in the capacity as trustees ofRajalakshmi Educational Trust, have surrendered possession to thepetitioners, and thus, the decree passed in the second appeal is a jointdecree without any condition whatsoever; that at the time of the filing of https://hcservices.ecourts.gov.in/hcservices/ E.P., the first petitioner has not obtained any orders under Order 21 Rule15(2); that the object of the first petitioner is to grab the propertywithout giving any respects to his own father who did not want to allowthe first petitioner to enjoy the property without being amenable to hisfather; that since the decree did not impose any condition, delivery ofpossession to any one of the decree holders or his representative ininterest was a valid delivery of possession; that the judgment debtorhaving delivered possession to the Court, the same has got to be recordedand the E.P. has to be dismissed. 4.The Court heard the learned Counsel for the petitioners, who alsoreiterated what has been urged before the Court below. 5.In answer to the above, it is contended by the learned Counsel forthe respondents that it was V.Subramaniam, who was the only executor andwho can continue the execution proceedings; that E.P. was also pendingbefore the Court; that delivery has been ordered; that the Rajasthani JainSamaj Educational Trust actually was an obstructor; that an application toremove the obstruction was also filed; that while the matter stood thus,the Rajasthani Jain Samaj Educational Trust filed a suit for injunction;that though the injunction was granted originally, it was subsequentlyvacated; and that it was also taken up in O.S.A., wherein it was alsoconfirmed. Added further the learned Counsel that Rajasthani Jain SamajEducational Trust tried to set up its title by entering into an agreementwith the judgment debtor; that when they were unsuccessful, they managedto obtain the sale deed from the grandchildren of the said VenkatesaSharma to set up a claim to the plaintiff; that their appeal has also beendismissed; that under the circumstances, now, this is an indirect methodinvented by the said Educational Trust by setting up the petitioners tofile the application to see as if the possession was delivered, andpursuant to the delivery of possession to the petitioners, a sale deed hasalso come into force, and thus, they are in possession of the property;that under the circumstances, the lower Court was perfectly correct indismissing the I.A., since the possession of the property was not takenpursuant to the delivery ordered by the Court, and there was no properdelivery as contemplated in law, and hence, the revision has got to bedismissed.6.The Court below after hearing the learned Counsel on either sideand also looking into the materials found that the application itself wasnot maintainable and rejected the same. Under the circumstances, thisrevision has been brought forth.7.After careful consideration of the rival submissions made, thisCourt is of the considered opinion that the order of the lower Court doesnot require any interference in the hands of this Court.8.As could be seen from the available materials, Mr.Subramaniam wasappointed as the Administrator of the estate of Venkatesa Sharma. Whenthe E.P. was filed, it is true that the petitioners were added as jointdecree holders in the place of their mother Kousalya. As far as theexecution proceedings were concerned, a question arose in CMP No.1446/2003whether it was one brought forth by the same Educational Trust, and thisCourt has found that Subramaniam was the only person competent to proceed https://hcservices.ecourts.gov.in/hcservices/ with the execution proceedings. Thus, it would be quite clear that thereis a finding recorded by this Court that in respect of the E.P. nowpending before the Court, Subramaniam was the only person to proceed withthe execution. Now, it is pertinent to point out that originally, theRajasthani Jain Samaj Educational Trust was actually found as anobstructor, and it also came up with the case to state that they were inpossession of the property through the judgment debtor. When it was founddifficult to proceed with, they came forward for the removal of theobstruction. A petition was filed in that regard. Apart from that, thesaid Trust also filed a suit in C.S.231/2006 seeking for interiminjunction. The injunction though granted, was vacated shortly.Thereafter, they filed OSA 261/2006 whereby the order of dismissal of theapplication for injunction was affirmed. While the matter stood thus,delivery was ordered by the lower court in the E.P. At that juncture, theinstant application has come up at the instance of the petitioners statingthat they were having 58.33% of the suit property, and therefore, they hadgot possession of the same from the judgment debtor, and they have soldthe same to Rajasthani Jain Samaj Educational Trust, and thus, they are inpossession, and their possession must be protected in view of the salemade by the petitioners herein, and it was a sale by these petitioners whoare the owners of the property of major share. Once they came forward tofile a memo stating that the property was properly delivered, and thedecree holder/plaintiff has taken it also, it has got to be recorded so.Now, at this juncture, the learned Counsel for the petitioner wouldfurther submit that originally the mistake that crept in was that thedecree holders after getting possession from the judgment debtor, shouldhave filed the satisfaction memo; that before that, the agreement holdernamely Rajasthani Jain Samaj Educational Trust, following the sale, haverushed to the Court and sought for an injunction; that the said relief hasbeen negatived; but, it did not mean that the owners who are thepetitioners herein, could not get delivery of the property from thejudgment debtor since these petitioners are also joint decree holders inthe eye of law, and therefore, there is no impediment for taking thepossession of the property; that pursuant to the agreement, they have soldit also, and under the circumstances, it has got to be recorded. Now, atthis point of time, it is pertinent to point out that originallyRajasthani Jain Samaj Educational Trust came with a plea that they are inactual possession of the property through the judgment debtor. Whilethere was a removal of obstruction which was sought for, they immediatelycame forward to file a suit. Now, it could be seen that they havepurchased the property from the petitioners as if they are the decreeholders, and they are entitled to get the possession of the property. Allwould clearly indicate that the said Samaj which has failed in its earlierattempts, set up the petitioners as if sale has been done. It is furtherto be pointed out that as per the orders already passed by the Court, theonly person who could carry on the execution proceedings wasMr.Subramaniam, who was appointed as Administrator and nobody else. Underthe circumstances, the E.P. was filed, and it was pending. Subsequently,delivery has also been ordered. Now, at this juncture, the petitionerscalling themselves as joint decree holders and also having a share of58.33% have come forward with the case, which, in the opinion of thisCourt, was nothing but collusive in order to defeat the decree and alsothe execution proceedings. Such a satisfaction memo can, at no stretch ofimagination, be filed or accepted by the Court. They cannot also come https://hcservices.ecourts.gov.in/hcservices/ forward to record so on the basis of an unlawful transfer which the Samajcould not do. It is clear that they set up the petitioners herein to dothe same indirectly. All would be indicative of the fact that it isnothing but not only an unlawful transfer pending the execution petition,but also collusive and was also against the Court proceedings. Under thecircumstances, the lower Court was perfectly correct in rejecting theapplication at the threshold. Hence, the order of delivery made by thelower Court, has got to be proceeded with in accordance with law.9.In the result, this revision petition fails and the same isdismissed. No costs. Consequently, connected MP is also dismissed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1.The X Assistant JudgeCity Civil CourtChennai.2. The Registrar,City Civil Court, Chennai.+ One cc to Mr. A.S. Narasimhan, Advocate sR 35045+ 3 ccs to Mr. K.V. Ananthakrishnan Advocate SR 34817nsv/BV (co)sg 21/6/07CRP NPD No.1459 of 2006Dt: 14-6-2007