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Visalakshi and Visalakshi Krishnamurthy Vs. Muthiah Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1983)2MLJ447
AppellantVisalakshi and Visalakshi Krishnamurthy
RespondentMuthiah Chettiar and ors.
Cases Referred and Umayal Achi v. Ramanathan Chettiar
Excerpt:
- .....in respect of few items and for re-delivery stating that he had no notice under order 21, rule 66, civil procedure code. this application was not actually numbered, but was treated as general number 1634 of 1976. a similar application was taken out by defendants 3 to 6 in respect of same other items. this was also not specifically numbered, but it was treated as general number 1632 of 1976. it may be noted that so far as these applications; were purported' to have been taken out under order 21, rule 90, civil procedure code, security was not offered. the date of the knowledge of sale was not also disclosed. therefore, an objection was raised by the office as to the maintainability of the application under section 47, civil procedure code, when the application ought to have been preferred.....
Judgment:
ORDER

S. Mohan, J.

1. Both these revisions can be dealt with under a common order. On 9th March, 1973, O.S. No. 191 of 1973, District Munsif's Court, Tenkasi, was filed on the foot of a promissory note, dated 2nd September, 1972 for a sum of Rs. 5,000. Pending the suit, the properties belonging to the defendants were attached before judgment in I.A. No. 381 of 1973. On 23rd April, 1973, the suit was decreed, on submission by defendants, against the first defendant, personally and against defendants 2 to 6 in so far as it related to the family properties in their hands. The attachment was made absolute. In execution of this decree, E.P. No. 71 of 1973 on the file of the District Munsif's Court, Shencottah, was filed for sale of the properties forming the subject-matter of the attachment. The upset price was fixed at Rs. 10,000. E.P. No. 22 of 1974 was filed again and the defendants were represented by a counsel. The upset price was reduced to Rs. 8,000. Then again, by another application, the upset price was reduced to Rs. 6,000. It was on 10th February, 1975, there was a sale in E.P. No, 70 of 1974 for a sum of Rs. 6,301, subject to the encumbrances, the purchaser being none other than the decree-holder. On 11th March, 1975, E.A. No. 25 of 1975 was filed by the first defendant for setting aside the sale in view of Ordinance I of 1975, which was later replaced by Tamil Nadu Act X of 1975. On 21st July, 1975, the execution application was dismissed and the sale was confirmed. On 30th August, 1975, the properties were taken delivery through Court and the delivery was recorded on 15th September, 1975. It has already been noticed that the purchase by the decree-holder in Court auction was subject to the encumbrances and, therefore, after taking delivery of possession, she discharged five encumbrances, 3 of his and 2 mortgages, in all totaling to Rs. 59,000. In addition to this, she incurred the following:

1. Arrears of Agricultural Income-tax due for 7 years Rs. 3,470.95

2. Expenses incurred in O.S. No. 22 of 1976 for evicting squatters set up by judgment-debtors. Rs. 15,000.00

3. Amount paid to Krishnan Pandithar as compensation to recover 45 cents. Rs. 1,400.00

4. Instalments paid to Land Development Bank, Tenkasi.

Rs. 12,000.00

After all these, on 4th October, 1976, an execution application was taken out by the first defendant to set aside the sale in respect of few items and for re-delivery stating that he had no notice under Order 21, Rule 66, Civil Procedure Code. This application was not actually numbered, but was treated as General Number 1634 of 1976. A similar application was taken out by defendants 3 to 6 in respect of same other items. This was also not specifically numbered, but it was treated as General Number 1632 of 1976. It may be noted that so far as these applications; were purported' to have been taken out under Order 21, Rule 90, Civil Procedure Code, security was not offered. The date of the knowledge of sale was not also disclosed. Therefore, an objection was raised by the office as to the maintainability of the application under Section 47, Civil Procedure Code, when the application ought to have been preferred under Order 21, Rule 90, Civil Procedure Code. The plea of limitation Was also raised. However, on 30th November, 1976, both these execution applications were rejected by the executing Court holding that the first defendant and defendants 3 to 6 were duly served by affixture. Against this dismissal C.M.A. Nos. 48 and 49 of 1977 on the file of Sub-Court, Tirunelveli, were filed. By an order dated 3rd July, 1978, the matter was remitted to the executing Court to consider! whether these was proper service and whether the price was adequate. These two questions had to be decided after notice to the decree-holder.

2. Against this order of remit, C.R.P. Nos. 2716 and 2717 of 1978 were preferred to this Court. They were dismissed in limine on 10th November, 1978. Thereupon, the decree-holder filed E.A. Nos. 88 and 89 of 1978 for dismissing the unnumbered execution applications as time-barred and not maintainable for want of security under Order 21, Rule 90, Civil Procedure Code. On 17th March, 1979, the above applications were allowed and the applications in General Numbers 1634 and 1632 of 1976 were dismissed. Aggrieved by the same, C.M.A. Nos. 71 and 72 of 1979 by defendants 3, 5 and 6 and by the first defendant respectively were preferred before the Sub-Court, Tenkasi. By the order sought to be revised, dated 3rd April, 1981, the Sub-Court remitted the matter for fresh disposal. The revisions are directed against the order of remit. C.R.P. No. 2189 of 1981 is preferred against C.M.A. No. 71 of 1979, while the other revision in C.R.P. No. 2190 of 1981 is preferred against C.M.A. No. 72 of 1979.

3. Mr. T. R. Mani, the learned Counsel for the petitioner urged several points of law in support of the revisions. One is, after the amendment of the definition of 'decree' under Section 2(2), Civil Procedure Code, no appeal was entertainable by the Sub-Court, Tenkasi, under Section 47, Civil Procedure Code. In support of this submission, reliance is placed on. Md. Khan v. State Bank of Travancore : AIR1978Ker201 and Pratap Narain v. Ram Narain : AIR1980All42 . The second contention of the learned Counsel is that at any rate as far as the first defendant-father is concerned, his application had come to be rejected in E.A. No. 25 of 1975 on 21st July, 1975, itself and, therefore, any subsequent application will be barred by the principles of res judicata. Those principles would apply to the execution proceedings as well can be seen from Mohanlal Goenka v. Benoy Krishna Mukherjee and Ors. : [1953]4SCR377 . The learned Counsel further relies on P.L. Agarwal v. L.P. Gupta : [1971]1SCR364 and Umayat Achi v. Ramanathan Chettiar : (1980)1MLJ24 . In any event, according to the learned Counsel Explanation VII to Section 11, Civil Procedure Code, adumbrating the principles of constructive res judicata would apply and the last point is one of limitation based on the ruling reported in Rajendran v. Sundararajan : AIR1980Mad123 .

4. Mr. S. Ramalingam, the learned Counsel for the respondents would urge that it is true the definition of 'decree' under Section 2(2), Civil Procedure Code, came to be amended, nevertheless where this Court is exercising revisional jurisdiction under Section 115, Civil Procedure Code, if the effect of setting aside an order of remit would result in an illegal' order, that should not be done in the interest of justice. To that effect is a clear pronouncement in Bhubaneswar v. Sakuntala Devi : AIR1978Ori37 ; Siddappa v. Lakshmammas; Jagamohandas v. Jamnadas : AIR1965Guj181 and Kuppuswami Pillai v. Alwar Chettier : AIR1935Mad89 . The learned Counsel does not dispute the fact that as far as the father is concerned!, an earlier application in E.A. No. 25 of 1975 was dismissed, but that was only on the ground that he could not have the benefit of Ordinance I of 1975 and the question of notice was never considered. On the point of limitation, now that the order of remit is there, it is well open to the executing Court to go into it.

5. On a careful consideration of the above arguments, I am of the view that this is a case in which an appeal did not lie in view of the amended definition of 'decree' under Section 2(2), Gvil Procedure Code. To that extent, Mr. T. R. Mani is justified in relying upon the decisions in Md. Khan v. State Bank of Travartcore : AIR1978Ker201 and Pratap Narain v. Ram Narain : AIR1980All42 . But, what I find is that the question whether the judgment-debtors had notice or not has to be essentially decided since it is well-settled in law that want of notice under Order 21, Rule 66, Civil Procedure Code, would vitiate the entire sale and the sale is rendered void. That question has not been gone into and it was for that purpose the remit order was made, of course, after giving notice to the decree-holder. Therefore, I do not think that merely on the ground that an appeal did not lie I should interefere. Instead, I should follow the salutary principle laid down in Bhubaneswar v. Sakuntala Devi : AIR1978Ori37 , which is as follows:

If the Court finds that by exercising its power under Section 115, it is going to set aside a correct and logical order merely on the ground of lack of jurisdiction and in its wake it brings into existence a wholly illegal and incorrect order, then it may refuse to exercise its revisional jurisdiction as that would be giving effect to an illegal and incorrect order.

In Siddappa v. Lakshmamma A.I.R. 1965 Mys. 313, it has been held as follows:

It is well-established that the High Court is not bound to interfere under Section 115, Civil Procedure Code, except in aid of justice. Thus, where the order of a Subordinate Court, has brought about a just result and where the setting aside of that order Would bring about an unjust result, the High Court would not exercise its discretion under Section 115, Civil Procedure Code, and interfere with such order, even though the order suffers from an illegality or irregularity.

Jagmohandas v. Jamnhadas : AIR1965Guj181 , lays down as follows:

Section 115, Civil Procedure Code, vests discretionary power in the High Court. The High Court is not bound to interfere in revision in all cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with raptorial irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which will not further the ends of justice. If the interference of the High Court will bring about injustice or encourage abuse of the process of the Court or promote mere technicality without advancing the cause of justice or be futile, the High Court will not interfere in revision, even though the conditions specified in any of the three clauses of the section are satisfied.

It has been held in Kuppuswami Pillai v. Alwar Chettiar : AIR1935Mad89 , as follows:

The revisional powers of the High Court are not exercised unless it appears to the High Court that injustice has been done to a litigant. The High Court will certainly not use its revisional powers to bring about injustice. Hence where it is clearly proved that defendant owes money to the plaintiff and a decree is passed against him, the High Court will not exercise revisional powers on a point of jurisdiction whether the suit lies in the Small Cause Side or the Original Side of the Court as such interference will be bringing about an injustice.

The above three decisions, namely, Siddappa v. Lakshmamma A.I.R. 1965 Mys. 313; Jagmahandas v. Jamnadas : AIR1965Guj181 and Kuppuswami Pillai v. Alwar Chettiar : AIR1935Mad89 , do not decide the issue excepting to state the scope of interference under Section 115, Civil Procedure Code.

6. It cannot be gainsaid that as far as the first defendant is concerned, his application seeking to set aside the Court sale in E.A. No. 25 of 1975 was dismissed on 21st July, 1975. No doubt, the reason stated for setting aside the sale was claiming benefits under Ordinance I of 1975 which was later replaced by Tamil Nadu Act X of 1975. Notwithstanding, this, nothing prevented him from urging this ground of want of notice as well, In Mohanlal Goenka v. Benpykrishna Mukherjee and Ors. : [1953]4SCR377 , it has been held that the principles of res judicata would apply to execution proceedings. Likewise it is held in P.L. Agarwal v. L.P. Gupta : [1971]1SCR364 and Umayal Achi v. Ramanathan Chettiar : (1980)1MLJ24 . Mr. T.R. Mani is well-founded in his submission in this regard. Whatever it may be, it is clear because, the principles of constructive res judicata would apply. However, one point requires to be mentioned at this stage. The learned Counsel for the petitioner Mr. T. R. Mani would explain that when once it is said the principles of res judicata will apply and any further application by the father would remain barred, the same consideration would apply to defendants 2 to 6 as well in view of the terms of the decree. I find that this point was not specifically raised, much less argued in the Courts below. Equally I need express no opinion on the question of limitation.

7. In the result, C.R.P. No. 2190 of 1981 will stand allowed and General No. 1634 of 1976, on the file of the District Munsif, Shencottah, will be dismissed. The order of remit, dated 3rd April, 1981 in C.M.A. No. 71 of 1979 will stand. C.R.P. No. 2189 of 1981 will stand dismissed. I make it clear that the order of remit, dated 3rd April, 1981, will be confined only to defendants 3, 5 and 6, which means General No. 1632 of 1976 will stand restored to the file and only the following two points will be decided in its disposal:

1. Whether defendants 3, 5 and 6 had notice of execution proceedings under Order 21, Rule 66, Civil Procedure Code, and the application seeking to set aside the sale are barred by limitation; and

2. Whether the principles of res judicata would be applicable even as against these defendants in view of the dismissal of the application in E.A. No. 25 of 1975 preferred by the first defendant on 21st July, 1975.

Needless to say that these questions shall be decided uninfluenced by any of the observations contained in this order. No order as to costs in both the civil revision petitions.


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