This revision has been directed against the order passed in R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004 in O.S.No.368 of 1998 on the file of Court of District Munsif, Tiruchengode which was filed by the second defendant in O.S.No.368 of 1998/Judgement Debtor No.2 in R.E.P.No.92 of 2004. O.S.No.368 of 1998 was filed by the plaintiff/decree holder for Specific Performance of Contract on the basis of a sale agreement entered into between the plaintiff and the first defendant on 17.4.1998. An exparte decree was passed on 29.6.1999. To execute the decree, the decree holder/1st respondent herein has filed R.E.P.No.92 of 2004.
2. While R.E.P.No.92 of 2004 was pending, the present revision petitioner had filed R.E.A.No.302 of 2005 under Section 47 of CPC contending that the second respondent/Judgment Debtor No.1 had indebted to several persons including the first respondent/decree holder and to discharge the said debt of the decree holder and other creditors, a panchayat was held on 29.10.1998 and as per the decision taken in the panchayat, the second respondent/Judgment Debtor No.1 had executed a sale deed in respect of the plaint schedule property in O.S.No.368 of 1998 for a sum of Rs.87,000/- in favour of the Judgement Debtor No.2/petitioner in R.E.A.No.302 of 2005 with an understanding that the sale proceeds to be equally distributed to all the creditors and accordingly a sale deed was executed on 29.10.1998 itself and the sale proceeds of Rs.87,000/- was distributed to all the creditors including the decree holder Nagasamy and a Muchalika was also executed by all the creditors for having received the amounts due to them from out of the sale consideration at the ratio of 34% each.
3. Before this Court along with this civil revision petition, the revision petitioner has filed the xerox copy of the sale deed dated 29.10.1998 and Muchalika dated 29.10.1998.
4. The learned counsel appearing for the revision petitioner would point out that Sl.No.16 in the Muchalika is the decree holder Nagasamy who had received 34% from out of the sale consideration towards his debt and has also signed in the said Muchalika for having received 34% from out of the sale consideration towards the amounts due to him.
5. The grievance of the learned counsel for the revision petitioner is as per Section 47 of CPC, the trial Court ought to have been given an opportunity to the revision petitioner herein/petitioner in R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004 to let in evidence both oral and documentary to prove his case. But without giving any opportunity to the petitioner in R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004, the learned trial Judge/executing Court had dismissed his application filed under Section 47 of CPC observing that to set aside the decree passed in O.S.No.368 of 1998, forgetting for a moment that it is not a bar for a defendant who remained exparte in the suit, to file a petition under Section 47 of CPC before the Executing Court in the Execution petition to raise all his contentions as in the suit. The manner in which the application filed under Section 47 of CPC ie., R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004 in O.S.No.368 of 1998 disposed of by the learned trial Court in a summery way , in my opinion is not in accordance with law in letter and spirit to Section 47 of CPC.
6. The learned counsel appearing for the first respondent relying on a decision reported in Padmavathi-v- Kaveriammal (2009(1)CTC 58) and contended that the executing Court cannot go behind the decree and even if the decree considered to be illegal one that cannot be challenged by way of filing of a petition under Section 47 of CPC. The facts of the said case are that one Ammaniammal filed O.S.No.1093 of 1990 against two sons and daughter Kaveriammal. The trial Court passed a preliminary decree on 7.2.1995 for partition and allotted five shares to the plaintiff Ammaniammal. All other defendants in the suit were remained exparte and there was no allotment of share in favour of them in the preliminary decree passed by the trial Court. After the death of Ammaniammal on 28.1.1999, the respondent filed an application under Order 20,Rule 18(2) of CPC for passing a final decree with a prayer to allot 5/8 shares to her along with 1/4share allotted to her in the preliminary decree. The said prayer is in contravention to declaration of shares in preliminary decree, since there was no share allotted to the respondent in the preliminary decree. The respondent claimed her share under a Will dated 28.11.1995 alleged to have been executed by her mother Ammaniammal in her favour. Only under such circumstances, it was held by the learned Judge of this Court that when no share was allotted to the party in a preliminary decree, he cannot file a petition under Section 47 of CPC questioning the preliminary decree in which no share was allotted to her. This Court has observed that it was a fraud committed by the petitioner who had filed a petition under Section 47 of CPC against the solemn act ie., passing of a preliminary decree by a competent Court of law. The said facts of the case will not be applicable to the present facts of the case because in this case, after obtaining 34% of the sale consideration under the sale deed dated 29.10.1998 in respect of the property scheduled to the plaint in O.S.No.368 of 1998 as per the Muchalika dated 29.10.1998 which was prepared in lieu of the sale dated 29.10.1998, the plaintiff/first respondent herein had approached the Court for Specific Performance of Contract in respect of the same property and obtained an exparte decree in favour of him.
7. The learned counsel appearing for the first respondent relying on decision reported in Rafique Bibi -v- Sayed Waliuddin (2004(1) Supreme Court Cases 287) would contend that the execution Court cannot go behind the decree. The exact observation in the said ratio at paragraph 8 relied on by the learned counsel appearing for the first respondent runs as follows:
"A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; that remedy of a person aggrieved by such a decree is to have it set aside inn a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."
There cannot be two opinion with regard to the said finding of the Honourable Apex Court. But the point to be considered in this civil revision petition is whether the executing Court has disposed of R.E.A.No.302 of 2005 which was filed under Section 47 of CPC in accordance with law. A petition filed under Section 47 of CPC cannot be disposed of like any other petition. It is a well settled proposition of law that an application filed under Section 47 of CPC is to be disposed of like a suit after giving due opportunities to the parties concerned to let in evidence on either side. But unfortunately , the executing Court in this case has not disposed of R.E.A.No.302 of 2005 in accordance with the provisions contemplated under Section 47 of CPC.
that the executing Court shall restore R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004 in O.S.No.368 of 1998 to its file and dispose of the same after giving due opportunities to both parties to let in evidence both oral and documentary and both parties are at liberty to place all the relevant documents before the executing Court during the trial of R.E.A.No.302 of 2005 in R.E.P.No.92 of 2004 in O.S.No.368 of 1998, within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.No.1 of 2007 is closed.
23.01.2009 Index:yes Internet:Yes sg Note: 1) Issue order copy today(23.1.2009)
2) Registry is directed to despatch the order copy today itself to the trial Court.
To The District Munsif Court, Tiruchengode C. R.P (NPD) No.2447 of 2007