The civil revision petition is directed against the fair and decreetal orders, dated 14.07.2006, passed in E.A.No.31 of 2005 in E.P.No.101 of 2004 in O.S.No.55 of 1998, on the file of the Principal District Munsif Court, Padmanabhapuram.
2. It is found that the petitioner / plaintiff has laid the suit, in O.S.No.55 of 1998, against the second respondent / defendant for recovery of money and it is further found that inasmuch as the second respondent / defendant did not contest the suit, the petitioner / plaintiff had been granted a decree in his favour as prayed for. The petitioner / plaintiff had put the above said decree in execution by filing E.P.No.101 of 2004 for further action against the property described in the execution petition for realization of the decreetal amount. At that stage of the matter, it is found that the first respondent, who is a stranger, had laid an application in E.A.No.31 of 2005 seeking for the impleadment of herself in the execution proceedings on the footing that she has purchased the property described in the execution petition from her predecessor-in-interest and as such the property described in the execution petition not being the property of the second respondent / defendant, she should also be impleaded in the execution proceedings initiated by the petitioner / plaintiff so as to enable her to put forth her objections as she is also a proper and necessary party to the execution proceedings. The said application had been resisted by the petitioner / plaintiff on the footing that there is no scope for impleadment of any third party in the execution proceedings as per law and if at all the first respondent has any claim in respect of the property concerned, it is for her to prefer necessary claim application in the execution proceedings and not the impleadment application as now laid and further, it is contended that the first respondent has no valid title to the property covered in the execution proceedings as claimed by her and hence, the application is liable to be dismissed.
3. It is found that the first respondent for the purpose of impleadment, has taken a plea that even prior to the institution of the suit, the second respondent / defendant had alienated the property concerned to one Ramkumar, by way of a sale deed, dated 15.10.1996 and the said Ramkumar had in turn alienated the same to one Oommen Babu by way of a sale deed, dated 19.02.1997 and the said Oommen Babu, after enjoyment of the said property, had alienated the same in favour of the first respondent for a valid consideration by way of a sale deed, dated 24.11.2003, and accordingly, it is only the first respondent, who had been enjoying the property concerned by effecting mutation and paying necessary charges in respect of the property concerned and thus, the petitioner / plaintiff is not entitled to proceed against the property concerned and thus, she is also a proper and necessary party for the execution proceedings.
4. The Court below found acceptance the case of the first respondent and accordingly, entertained the application preferred by her. Impugning the same, the present civil revision petition has been preferred.
5. As rightly argued by the learned counsel for the petitioner / plaintiff, it is found that the Executing Court as such is bound to execute the decree and cannot go beyond the terms of the decree by impleading the third parties to the proceedings, who are not the persons claiming right, title or interest in the decree through the decree-holder. As regards the above contention of the learned counsel for the petitioner / plaintiff, it has not been established by the learned counsel for the first respondent that the first respondent is entitled to seek for impleadment of herself in the execution proceedings as prayed by her.
6. However, it is argued by the learned counsel for the first respondent that inasmuch as the petitioner / plaintiff had endeavoured to proceed against the property purchased by the first respondent and as the second respondent / defendant has no title to the said property, since he had already alienated the same as claimed by the first respondent, it is stated that the first respondent having a claim of right, title and interest to the property involved in the matter is entitled to get herself impleaded in the execution proceedings. Even if the above said argument is to be prima facie accepted, when even according to the first respondent, she is laying a claim of right, title and interest to the property covered in the execution proceedings, as rightly put forth by the learned counsel for the petitioner / plaintiff, the proper remedy available to the first respondent would be only to prefer necessary claim application in the execution proceedings as contemplated under Order XXI Rule 58 of the Code of Civil Procedure, and instead of resorting to the said course, it is found that the first respondent had preferred only the impleadment application to get herself impleaded in the execution proceedings.
7. The application filed by the first respondent being only for a limited purpose for getting herself impleaded, it is found that the Court below would not have been in a position to completely adjudicate the rights of the parties with regard to all or any of the matters in controversy pertaining to the subject matter, as contemplated under Order XXI Rule 58 of the Code of Civil Procedure. It if found that the Court below would only be confined to pass a formal order, which cannot be termed as a decree as to whether the first respondent is entitled to get herself in the execution proceedings or not. Further, when it is found that the order that would be passed by the Court below in a claim application preferred under Order XXI Rule 58 of the Code of Civil Procedure is equivalent to a decree and as against the said order, only an appeal would lie, it is found that the first respondent for the reasons best known to her had chosen to file only the impleadment application and not a claim application as required by law. It is found that as per Order XXI Rule 58 of the Code of Civil Procedure, the Court would be competent to decide all the issues arising between the parties to the proceedings and deal with the claim or objection put forth to the subject matter by the respective parties and accordingly, the parties would not be required to seek recourse by way of filing a separate suit. Further, when it is seen that the order passed under Order XXI Rule 58 of the Code of Civil Procedure has the same force and subject to the same conditions as if it is a decree, it is found that, in my considered opinion, the above said impleadment application preferred by the first respondent for getting herself impleaded in the execution proceedings is not sustainable in law and the only remedy available to her is to prefer necessary claim application.
8. Be that as it may, it is found that the first respondent has chosen to adduce some evidence on her part to claim title to the subject matter of the proceedings. It is found that the first respondent has not chosen to examine herself for the reasons best known to her. She has examined only her husband in support of her case. It is found that the first respondent's husband, during the course of his cross-examination, has admitted that before purchase of the property concerned by his wife, the encumbrance certificate has been verified. Further, he has also admitted that on such verification, it is found by them that there were ten attachments made in respect of the property concerned as per the orders of the Sub Court and the District Munsif Court. In such view of the matter, when it is admitted by the first respondent's husband that even prior to the purchase of the property concerned by the first respondent, there were attachments effected in respect of the same as per the orders of the Court below, it is strange that the first respondent had endeavoured to purchase the property without taking further steps to clear the attachments effected as per law. It has not been placed by any acceptable material that the attachments admitted to have been made in respect of the property concerned as per the orders of the Court below had been cleared by the first respondent as per law before her purchase of the same. Therefore, it is found that as rightly argued by the learned counsel for the petitioner / plaintiff, the first respondent has purchased only the litigation.
9. That apart, it is found that in support of the first respondent's case, four documents have been pressed into service. It has been admitted by the first respondent's husband that originally the property concerned belonged to the second respondent / defendant. According to first respondent, the same had been transferred to several persons thereafter and finally, according to the first respondent, she had purchased the property from Oommen Babu by way of the sale deed, dated 24.11.2003. It is not in dispute that the subject property involved in the execution proceedings is located within the jurisdiction of Thiruvattar Sub-Registrar's Office. It is, therefore, found that any transaction pertaining to the same should have been registered only in the concerned Sub-Registrar's Office. On the other hand, it is found that the documents pressed into service by the first respondent had come to be registered at Kerala and with reference to the same, no proper explanation has been adduced by the first respondent's husband during the course of his testimony and in such view of the matter, it is highly doubtful whether any valid title would have been conveyed by the first respondent's predecessor- in-title in respect of the subject matter as the documents of title purported to convey the same has not been registered in the Sub-Registrar's Office within the jurisdiction of which, the property is located and on the other hand, it is found that the said documents had come to be registered in Kerala. In this connection, strong reliance is placed upon by the learned counsel for the petitioner / plaintiff reported in 2003 (1) CTC 539 [M.Manoharadhas vs. C.Arumughaperumal Pillai and another] to enlighten that such sale deeds not having been registered within the limits of the Sub- Registrar's Office concerned would be illegal and void in its entirety as it constitutes fraud on registration. When no proper explanation has been given by the first respondent as to how the earlier title deeds in respect of the subject property through which, the first respondent seems to have claimed title and had come to be registered at Kerala and not in the concerned Sub- Registrar's Office, it is found that the first respondent has not established prima facie that she had purchased the property from the lawful owner. In such view of the matter, the case of the first respondent that she has a valid claim to the property concerned as per the sale deed, dated 24.11.2003, as such cannot be countenanced rightly. Accordingly, it is found that when prima facie the first respondent has not been able to establish a valid claim to the property concerned as put forth by her, her further case that she is a proper and necessary party to get herself impleaded in the execution proceedings also cannot be countenanced in any manner.
10. All the above aspects had not been gone into by the Court below in the proper perspective and on the other hand, based upon the oral evidence of the first respondent's husband and the documents marked on the side of the first respondent, without adjudicating the objections made by petitioner / plaintiff with reference to the same, as discussed above, it is found that the Court below has passed a formal order allowing the impleadment of the first respondent without adjudicating the rights and objections of the respective parties concerned, with reference to the property involved in the execution proceedings and in such view of the matter, it is found that the order of the Court below in allowing the impleadment of the first respondent as such cannot be accepted in any manner. As seen above, there is no scope for the impleadment of the third parties to the execution proceedings without establishing a prima facie claim of right to the property involved in the execution proceedings.
11. However, it is argued by the learned counsel for the first respondent that the decree had been obtained in a collusive manner by the petitioner / plaintiff and the second respondent / defendant and accordingly, the execution petition had been preferred as against the property to which the second respondent has no right as such. However, apart from making the above said bald allegation that the decree had been obtained by the petitioner / plaintiff in a collusive manner, there is no material as such produced on the side of the first respondent to sustain the same. A mere allegation would not suffice and as rightly argued by the learned counsel for the petitioner / plaintiff, it is for the first respondent to substantiate the same with acceptable materials. When the same is not forthcoming and when it is further found that the first respondent herself has not established a prima facie claim of right to the subject matter as discussed above, in my considered opinion, the contention of the first respondent that the decree obtained by the petitioner / plaintiff is a collusive decree as such cannot be countenanced. Accordingly, the decisions relied upon by the learned counsel for the first respondent reported in 2011-1-L.W.7 [M.Baskar vs. M.Parameshwari and others] and 2014-2-L.W.497 [Maya Devi vs. Lalta Prasad], as rightly argued by the learned counsel for the petitioner / plaintiff, would not be applicable to the case at hand.
12. In the light of the above discussions, the fair and decreetal orders, dated 14.07.2006, passed in E.A.No.31 of 2005 in E.P.No.101 of 2004 in O.S.No.55 of 1998, on the file of the Principal District Munsif Court, Padmanabhapuram, cannot be sustained and accordingly, they are set aside. Resultantly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petitions are closed.
To:
The Principal District Munsif, Padmanabhapuram.
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