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S. Paramanayagam Asari Vs. R.S. Naidu - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1969)2MLJ271
AppellantS. Paramanayagam Asari
RespondentR.S. Naidu
Excerpt:
- .....made incumbent on it under order 21, or that it should go behind, the decree, and canvass the correctness of the cause title.7. with these observations, the revision petition is dismissed without costs. but i desire to observe that if a suit is filed, and if the revision petitioner fails in the suit it appears to be fit and proper that he should be mulcted with heavy costs, for his highly objectionable conduct.
Judgment:
ORDER

M. Anantanarayanan, C.J.

1. This civil proceeding involves a question, which is of some interest on the particular facts of the case. S.C. No. 1625 of 1964 was admittedly a suit for recovery of arrears of rent, filed against the tenant who was impleaded as defendant with the name S. Periayanayagam Asari. The suit was decreed, and the record shows that the decree, as it ultimately stood, exhibited the name of the judgment-debtor as ' S. Periayanayagam Asari alias Paramanayagam Asari, son of Somasundaram Asari.'

2. The decree-holder (respondent) filed an application under Order 21, rules 43 and 66, Civil Procedure Code, for attachment and sale of movables of his judgment-debtor. At that stage, the person who is the judgment-debtor according to the decree-holder entered appearance in response to notice and claimed that he was a third party and not the judgment-debtor. This person appears to have made a. stout denial in Court in respect of his identity as the judgment-debtor, and also to have claimed that there should be no attachment and sale of the movables, as they really belonged to him as a third party, not as the judgment-debtor. As learned Additional District Munsif himself observes, it therefore became necessary to clear doubts about the identity of the judgment-debtor, which was ' a very unusual position.'

3. The learned District Munsif seems to have addressed himself to the task, at considerable length, and canvassed the evidence in great detail. He was satisfied from the evidence that the person who appeared in Court was really the judgment-debtor, and was pretending to be a third party. It is against this order that the revision is sought to be filed.

4. The revision is on the very simple ground that, according to the revision petitioner, the Court erred in holding that he was the defendant-judgment-debtor; hence there should be no further procedure against him.

5. The learned Counsel for the decree-holder (respondent) points out, and not without plausibility and force, that this is the very person who is residing as a tenant in the premises, which he does not deny, and that this is the same person who is in arrears of rent, and against whom the decree has been passed. As the learned District Munsif rightly points out, the decree, as it stands, is liable to be executed against S. Periayanayagam Asari alias Paramanayagam Asari, with a particular address. The request of the revision petitioner that the executing Court could go behind the cause title, is totally inadmissible. Whether the cause title remains as it was on the date of suit, or was amended by a subsequent application pendente lite, the executing Court cannot go behind the decree, and is bound by it. The decree is executable against the assets of any person whose identity fits in with the name and alias, fathers' name and address, given in the cause title.

6. If a person in that situation like the revision petitioner really desires to claim that he is a third party, though resident in the same premises, and hence not liable under the decree, his true remedy is to file a declaratory suit for that purpose under the common law. He cannot claim that the executing Court should not follow the procedure made incumbent on it under Order 21, or that it should go behind, the decree, and canvass the correctness of the cause title.

7. With these observations, the revision petition is dismissed without costs. But I desire to observe that if a suit is filed, and if the revision petitioner fails in the suit it appears to be fit and proper that he should be mulcted with heavy costs, for his highly objectionable conduct.


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