1. The following are the allegations found in the petition filed under section 47 of C.P.C. by the petitioner in E.A.No.851 of 2005/respondent herein:
1. (a) The petitioner is third party in O.S.No.798 of 2000 on the file of the District Munsif Court, Trichirapalli. The respondent obtained a preliminary decree in the above suit on 17.09.2003 in which the respondent was allowed half share in the suit property. Subsequently, a final decree has been passed by means of which entire suit property was allotted to her. On the strength of the final decree, she took possession of the suit property on 17.12.2004 through court. The petitioner is residing in the suit property. The petitioner's father's sister by name Saraswathi executed a registered Will on 13.03.2003 bequeathing the suit property in favour of this petitioner and she died on 20.02.1989. Originally the suit property belonged to one Chinnathambi. After the demise of Chinnathambi the said Saraswathi was enjoying the property. She was maintained by this petitioner. She had no issues. The petitioner has performed her last rites on her death as per Hindu religious customs. The respondent has no right in the suit property. She is in no way connected to Chinnathambi.
1 (b) The petitioner also filed an application to implead him in the above suit in place of Saraswathi and the same is yet to be numbered. By means of a patta dated 06.09.1995 issued by the Adhi Dravida Welfare Department, the suit property was assigned to Chinnathambi. Right from the date of said patta, Chinnathambi and after his death his wife Saraswathi had been enjoying the property. Subsequent to the demise of Saraswathi, the petitioner alone is entitled to the suit property. A decree passed in O.S.No.798 of 2000 is a nullity which cannot be executed. Hence the Court may declare that the final decree passed in O.S.No.798 of 2000 by the Principal District Munsif is null and void, unenforceable in law and consequently pass an order dismissing the execution petition in E.B.No.78 of 2004 filed by the respondent for delivery.
2. In the counter filed by the respondent in E.A.No.851 of 2005/petitioner herein, the following allegations are found:
2. (a) The petition is false, frivolous and vexatious. It is not maintainable under section 47 of C.P.C. Being a third party, the petitioner has never been in possession of the suit property and he has no locus standi to file this petition. Only a party to the proceedings can file a petition under section 47 of C.P.C. Only by due process of law, this respondent got the share and the delivery of possession. The petitioner filed suit in O.S.No.1267 of 2003 before the II Additional District Munsif, Trichirapalli, in which he did not get interim injunction. The petition was dismissed on merits and he did not prefer any C.M.A. Hence, this petition is not maintainable. It is false to state that he is residing in the suit property. It is incorrect to state that Saraswathi executed the registered Will dated 13.03.2003. The petitioner is utter stranger to the suit property. The truth, validity, execution, attestation and signature of the Will are denied specifically. Even though the petitioner is aware of the pendency in O.S.No.798 of 2000 and after the death of Saraswathi, he has not chosen to file any petition to implead. The Amin report is clear that the petitioner was not in possession at the time of delivery of possession. The executing court is not competent to decide the right of the petitioner, which, court is bound by the decree passed by the trial court.
2.(b) It is false to state that the petitioner performed the last rites of Saraswathi and that he took care of her; that this respondent alone maintained her till her death. The suit originally belonged to one Ammasi s/o Sankara Pillai, mother of this respondent. She died leaving behind her sons viz., Chinnathambi, Arumugam and this respondent. The suit in O.S.No.798 of 2000 was filed by this respondent against Saraswathi w/o Chinnathambi, Alagammal w/o Late Arumugam. Pending trial of the suit, Saraswathi died without any legal heirs. Alagammal also relinquished her share in favour of this respondent after receiving a sum of Rs.5,000/-. Accordingly the preliminary and final decrees were passed in favour of this respondent. It is denied that the Adhi Dravida Welfare Department issued patta to Chinnathambi on 6.9.1995. It is not true to state that the decree is a nullity. Hence the petition has to be dismissed.
3. The learned I Additional District Munsif, Trichirapalli, allowed the application filed under section 47 of C.P.C., observing that the final decree passed in O.S.No.798 of 2000 dated 13.10.2003 is null and void and unenforceable in law and E.P.78 of 2004 is also not maintainable and declared that the delivery effected through the final decree is illegal. The petitioner was also directed to deliver the suit property to the respondent within three months.
4. As far as the locus standi of the respondent to file petition under section 47 of C.P.C is concerned, the language employed in section 47 has to be looked into. Section 47 C.P.C. reads thus:
"47. Questions to the determined the court executing decree (1) All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.
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(3) Where as question arises as to whether any person is or is not the representative of a party such question shall for the purpose of this section, be determined by the court."
5. When a careful scrutiny is undertaken in sub-section 1 of section 47, it transpires that not only the parties to the suit but also their "representatives" are entitled to file petition under this provision as to the execution, discharge or satisfaction of the decree. It is further provided that such dispute need not be relegated to a trial in the separate suit. The section commences with the words "all questions arising between the parties". Hence, it goes without saying that whatever be the rights of the parties intended to be agitated in a proceedings can be made by filing a petition under Section 47 of C.P.C. In this context it is to be observed that the respondent claiming right in the suit property under the Will reportedly executed by Saraswathi, who is first defendant in the suit, is entitled to file this application.
6. In order to settle the issue, the Court has to trace the title of both parties on the basis of their pleadings. The discussion as to the genuineness, validity and enforceability of the Will would be taken up later on. As far as the right to claim the suit property is concerned, it is the earlier pleading of this petitioner in the suit, that after the death of Ammasi, the first respondent and her husband were enjoying the suit property and after the death of Chinnathambi in the year 1995 the first defendant alone was enjoying the suit property. There is no definite pleading in the plaint that who was the original owner of the property. However, it appears that the suit property originally belonged to Ammasi, mother of the petitioner. In order to show that she was the original owner of the property, there is no document. It appears from the records that only on 25.10.2005 the name of the petitioner got entered into the property tax assessment as evident from Ex.R-5. Hence only during 2005 her name finds place in the records. But the respondent has produced assignment patta Ex.P.4 issued by the Adhi Dravida Welfare Department, in favour of Chinnathambi. Ex.P.6 and Ex.P.7 are the property tax demand notices issued by the Trichirapalli Municipal Corporation. In the Will dated 13.03.2003 purported to have been executed by Saraswathi, she has stated that the property, i.e., vacant site was assigned in favour of her husband Chinnathambi in which he put up tiled house and paying corporation tax etc., and was enjoying absolutely.
7. In this juncture the findings recorded by the executing Court are pertinent. In the plaint, the door number of the suit property is mentioned as 19 but in the Will, the same is noted as 25. Hence a debate was made before the Court as to the discrepancy in door number and it is stated by the petitioner that the property covered by the Will is a different one. If the property covered by Will is a different one, there is no necessity for the respondent to take up a legal fight with this petitioner.
7(a) The petitioner has not specifically disputed the door number of the property in his counter. Even though P.W.1 was confronted with certain questions with reference to to the door number, no such suggestion was put to him that the property mentioned in the Will is not the property covered by the suit. In the proof affidavit for chief examination of R.W.2, there is no mentioning about the discrepancy in the door number. Ex.P-7 series property tax receipts and property tax demand notice issued in the name of the respondent for Door No.25, but in Ex.R-4 and R-5 the property tax receipt and the property tax assessment notice for the period 2005-2006, the door number mentioned is 19. In this juncture, it is also to be noted that this petitioner could not trace the title to the site on which the house was put up. It is worth mentioning to refer here that the assignment patta issued by the District Welfare Officer, Trichirappalli, marked as Ex.P-4, which shows that an extent of 0.03 acres (3 cents) in Survey No.1639/2, was granted in favour of Chinna Thambi. This patta appears to have been issued in the year 1965. Ex.P-4 plays vital role in this case.
7(b). It is pertinent to note that in the absence of specific pleadings in the plaint in O.S.No.798 of 2000 by the petitioner as to who was the original owner of the property and by virtue of which document the said person got the property, there is no wrong in placing reliance upon Ex.P-4, the assignment patta and to hold that the house in Door No.25 was constructed by the said Chinna Thambi in the said property. While the oral evidence as regards these factors as available in the evidence of the petitioner as R.W.1 are scrutinised, she has stated in the cross examination that a patta was issued to her mother for 3 cents by the Government and she has seen the same; that the said patta was in possession of her brother Chinna Thambi and that her brother Chinna Thambi had given the patta to his wife. While harmonious reading of the above said pieces of oral accounts are carefully gone into, it must be observed that only one patta was issued for the property i.e., Ex.P-4 in the name of Chinna Thambi in which the house was put up by him and that there had been no assignment patta in favour of Ammasi, mother of this petitioner, at any point of time. In view of the above said observations, the dispute as to the identity of the property does not loom large, since both the parties are agitating over the same property.
8. As far as the competency of the executing Court under Section 47 is concerned, it is strenuously contended on behalf of the petitioner that the executing court cannot go behind the decree and that it has to execute the decree as it stands, as per the settled principles of law, as held in 2007 (1) MLJ 484 [Baskaran v. M. Sabathy] and 2004 (2) MLJ 724 [Sivasamy v. Raju Mudaliar and others].
9. The Learned counsel for the petitioner Mr. Vallinayagam placed reliance upon a decision of the Supreme Court in AIR 2001 SUPREME COURT 2552 [Dhurandhar Prasad Singh v. Jai Prakash University and others] wherein principles have been laid down with regard to the scope of Section 47 C.P.C and the powers exercisable by the executing court when an application filed under this provision. The relevant portions are as follows:
"22. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the Court executing the decree and not by a separate suit. The powers of Court under Section 47 are quite different and much narrow than its power of appeal, revision or review. ... ... ...
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"23. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. ... ... ... ... ... ..."
10. A stress is laid on behalf of the petitioner on the strength of the decision of the Supreme Court in 2004 (1) SCC 287 [Rafique Bibi v. Sayed Waliuddin and others] wherein Their Lordships held that remedy in case of illegality is to have it set aside in a duly constituted legal proceedings or by a superior court, failing which command of decree must be obeyed and that decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. In the same decision the Honourable Supreme Court has also discussed about the scope of Section 47. As far as the present proceedings is concerned, the respondent has come to the Court on the strength of a Will and questioning the validity and executability of the decree under Section 47 of C.P.C., which is a "duly constituted legal proceedings", in the capacity of "representative" of the party to the suit. In other words, it can be stated that Section 47 CPC enables the respondent to file petition for deciding questions to be determined the court executing decree.
11. Learned counsel for the respondent Mr. M. Jahangir Baba placed much reliance upon a decision of the Honourable Supreme Court in 2006 SAR 432 [Padma Ben Banushali and Another v. Yogendra Rathore & Others] in which it is held as follows:
"12. Since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court."
12. The respondent questions the executability of the decree under Section 47 of CPC and the executing court can freely determine the questions to be done within its ambit. In AIR 1997 SUPREME COURT 1812 [Gangabai Gopaldas Mohata, v. Fulchand and Others] the Supreme Court has held as follows:
"9. If a person approaches the execution Court claiming that he is the representative of decree holder's interest in the decree and the decree holder disputes it, the execution Court has to resolve the dispute for proceeding with the execution of the decree. The view of the learned single Judge of the High Court of Bombay that the Court has only a limited jurisdiction is, therefore, not in consonance with the wide language employed in Section 47 of the Code."
13. In AIR 1968 CALCUTTA 547 [Umaprasad Pal and Others v. Mrityunjay Pal and Others] also an identical view has been taken.
14. In AIR 2008 NOC 1708 (M.P.) [Smt. Gouri Bahu v. Gopaldas Potoram Jaiswani] it is held that the applicant legatee under a Will is covered by definition of term 'legal representative' under Section 2(11) of C.P.C. That the legatee under Will representing estate of deceased decree holder can claim right to execute decree in respect of suit property.
15. In view of the above propositions of law, it has to be necessarily observed that the respondent is competent to file the petition under Section 47 of C.P.C. as regards the questions to be determined by the executing Court as to the executability of the decree.
16. Respecting the proof of genuineness, execution and enforceability of the Will, the respondent has examined P.W.2 by name Periasamy. He has stated that he attested the Will executed by Saraswathi, that she was hale and healthy at the time of execution of the Will; that one Perumal also put his signature in the Will that Saraswathi Ammal put her thumb impression in the Will. It is pertinent to note that no motive was attributed to him to create or fabricate the Will in favour of the respondent and against the interests of the petitioner. No suggestion was also made in this regard to him. By means of this examination, the Will (Ex.P.1) dated 13.3.2003, has been proved as required by law. Consequently it is held that it is genuine and enforceable.
17. It is well settled principles of law that it shall not be necessary that more than one witness shall have been present at the same time and no particular form of attestation shall be necessary. P.W.2 has also stated in his chief examination that one Perumal also attested the will. Even though in the cross examination he has stated that he did not see anybody else attesting the Will, a harmonious reading of his deposition would go to show that Perumal was also present in the place of execution and attested at the same time when the execution was made. it is also settled position while an attesting witness stated that the executant put his thumb impression in his presence, it is a sufficient proof of valid attestation.
18. The respondent during the final decree proceedings made the court to believe that there was no legal heirs for the deceased/first defendant Saraswathi and obtained the final decree producing second defendant are making her to represent before the Court that she received Rs.5,000/- that she relinquished her interest in the suit property. He has played fraud upon the Court suppressing the legal representative of the deceased/first defendant and hence the final decree is vitiated by fraud, it is contended.
19. Learned counsel for the respondent placed reliance upon a decision of the Supreme Court in 2007(4) L.W. 139 [A.V. Papayya Sastry & Others v. Government of A.P. & Others] in which it is stated that an Order or Decree obtained by playing fraud on the Court, is a nullity and non-est in the eye of law and the same can be challenged in any court at any time, in appeal, revision, writ or even in collateral proceedings.
20. A principle has been formulated by the Supreme Court in 2006 SAR (Civil) 663 [Hamza Haji v. State of Kerala and Another] that suppression of material document amounts to a fraud on the court. It is stated that knowing fully well that this respondent is beneficiary under Will executed by Saraswathi, the petitioner did not implead him as a party in the final decree proceedings and hence it is not valid. This Court does not accept the contention for the reason that there was no occasion for the petitioner to know about the Will at the time of passing final decree. However, when genuineness, execution and validity of the Will have been proved before the execution Court, it has to be observed that the respondent could lay claim and question the executability of the final decree.
21. In the light of the above said observations, following the principles laid down by the Supreme court, it is held that the order challenged before this Court does not suffer from any legal infirmity. The conclusion of the executing Court that the decree could not be executed is appropriate and the Civil Revision Petition is liable to be dismissed.
22. In fine, the Civil Revision Petition is dismissed. No costs. Connected M.P. is also dismissed.
ggs To The I Additional District Munsif, Trichirapalli.