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Ramachandran and ors. Vs. S. Jayaraman - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1985)2MLJ133
AppellantRamachandran and ors.
RespondentS. Jayaraman
Cases ReferredJodhya Roy v. Hardwar Roy
Excerpt:
- .....defendants. the plaintiff-respondent by some arrangement with his brother is in possession of the suit property and has obtained the kudiyiruppu assignment deed evidenced by exhibit a-1. the defendants objected to this assignment by the authorised officer (kudiyiruppu), mayuram. in appeal preferred by the second defendant, the order was confirmed by the appellate authority, district revenue officer, thanjavur. the plaint averred that the defendants are trying to execute the decree in o.s.no. 410 of 1968 and he having obtained the kudiyiruppu assignment cannot be evicted and that the defendants should be restrained by an injunction from taking delivery of the suit property by execution of the decree in o.s.no. 410 of 1968.2. the suit was resisted by the appellants-defendants who have.....
Judgment:

G. Maheswaran, J.

1. The defendants are the appellants. The suit out of which this second appeal arises was filed by the respondent-plaintiff for an injunction restraining the defendants from taking delivery of the suit properties by executing the decree in O.S.No. 410 of 1968 on the file of the District Munsif's Court, Sirkali. That suit, O.S.No. 410 of 1968, was instituted by one Venkatesan Pillai, father of defendants, for recovery of possession of suit properties against one Ajeetha Divi, Sheik Dawood and Danapal. The said Danapal is the brother of the respondent in this appeal. Pending trial, Venkatesan Pillai died and the defendants were brought on record. The suit was decreed ex parts in favour of the defendants. The plaintiff-respondent by some arrangement with his brother is in possession of the suit property and has obtained the kudiyiruppu assignment deed evidenced by Exhibit A-1. The defendants objected to this assignment by the Authorised Officer (Kudiyiruppu), Mayuram. In appeal preferred by the second defendant, the order was confirmed by the appellate authority, District Revenue Officer, Thanjavur. The plaint averred that the defendants are trying to execute the decree in O.S.No. 410 of 1968 and he having obtained the Kudiyiruppu assignment cannot be evicted and that the defendants should be restrained by an injunction from taking delivery of the suit property by execution of the decree in O.S.No. 410 of 1968.

2. The suit was resisted by the appellants-defendants who have stated that the plaintiff is not entitled to the benefits of Kudiyiruppu Act, that he is a taxi driver at Madras, and that the Kudiyiruppu assignment deed (oppadai pathiram) is not valid and binding on the defendants.

3. The trial Court found that the plaintiff will be entitled to the benefits of Act 40 of 1971 and that he will be entitled to. a decree for injunction and decreed the suit. In appeal, the judgment of the trial Court was confirmed and the appeal was dismissed.

4. The only substantial question of law formulated by a learned Judge of this Court in the second appeal is 'whether the subsequent issue of patta under Act 40 of 1971 would have the effect of nullifying the decree of the Civil Court obtained earlier?'. In addition to this point, learned Counsel appearing for the appellants raised another point of law which he has not raised in the courts below, nor in the memorandum of grounds of appeal in this Court, and that is, that Section 47, Civil Procedure Code, is a bar for filing of the suit. These two points of law can be dealt with together.

5. The suit, O.S.No. 410 of 1968 was instituted by Venkatesam Pillai, father of defendants, against three persons, Ajeetha Bivi, Sheik Dawood and Danapal, as is evident from Ex.A-5, copy of the plaint filed in this case. There is no dispute that the suit was decreed ex parte favour of the defendants who have been impleaded in the suit as legal representatives of Venkatesam Pillai, who died pending suit. The respondent was not a party to the suit, O.S.No. 410 of 1968. He has obtained the kudiyiruppu assignment under Exhibit A-1. According to the plaintiff, under the guise of execution of the decree in O.S.No. 410 of 1968, the defendants are trying to take delivery of the suit property for which he has obtained kudiyiruppu assignment under Exhibit A-1. On the other hand, the contention of the appellants is that in order to defeat the decree in O.S.No. 410 of 1968, the plaintiff and his brother colluded together and the plaintiff has obtained assignment in respect of the suit property and that the assignment is not valid. It is not necessary to enter into any discussion whether there was any collusion. It is sufficient to point out that the appellants cannot question the validity of the kudiyiruppu patta any longer as the kudiyiruppu patta was questioned by the second defendant before the Additional Authorised Officer (Kudiyiruppu), Mayuram, by the defendants in C.No. 59 of 1972 evidenced by Ex.A-2 and the petition filed by the second defendant was dismissed confirming the grant of kudiyiruppu assignment (kudiyiruppu patta) in favour of the plaintiff. The District Revenue Officer, Thanjavur, confirmed the grant of kudiyiruppu assignment (patta) in favour of the plaintiff and dismissed the appeal. That order has become final and the validity of the grant of kudiyiruppu assignment (patta) cannot be challenged by the defendants.

6. It was earlier pointed out that the decree obtained by the defendants was against the brother of the plaintiff and not against the plaintiff and that decree will not bind the plaintiff here. But the question is whether Section 47, Civil Procedure Code, is a bar to the institution of a suit by the plaintiff. Section 47 embraces all questions arising between the parties to the suit in which the decree was passed and relates to the execution, discharge, or satisfaction of the decree. Prima facie, Section 47, Civil Procedure Code, is not applicable, for the plaintiff-respondent is not a party to O.S.No. 410 of 1968. But, however, my attention was invited to Explanation II to Section 47, Explanation II(a) says that for the purposes of Section 47, a purchaser of property at a sale in execution of the decree shall be deemed to be a party to the suit in which the decree is passed and Clause (b) of Explanation II says that all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of that section. But the plaintiff is not a purchaser of the suit property in a sale in execution of the decree, nor is he the representative. Whether a particular person is a representative or not, has been discussed in A Jodhya Roy v. Hardwar Roy (1909) 9 C.L.J. 485 : (1909) 1 I.C.213. It was observed therein as follows:

To determine, therefore, whether a particular person is a representative of a party to the suit, the two tests to be applied are first, whether any portion of the interest of the decree-holder or of the judgment-debtor, which was originally vested in one of the parties to the suit, has by act of parties or by operation of law, vested in the person who is sought to be treated as representative and secondly, if there has been a devolution of interest, whether, so far as such interest is concerned, that person is bound by the decree.

Therefore, the term 'representative' means the transferee of the interest of a party who so far as that interest is concerned is bound by the decree. Learned Counsel then pointed out that Danapal and his brother, the plaintiff-respondent herein were members of a joint family. But there is no evidence in that regard. Danapal was impleaded in O.S.No. 410 of 1968 hot as a manager of a joint family, but in his individual capacity as a tenant along with two others. In the circumstances, Section 47, Civil Procedure Code, will not be a bar to the suit. The result is, the second appeal fails and is dismissed and the judgment and decree of the Courts below are confirmed. No costs.


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