This civil revision petition has not been admitted and only notice of motion is ordered and on the first respondent entering appearance and the revision petitioners having given up the respondents 2 and 3 by way of filing a Memo, dated 28.07.2017, with the consent of both parties, the main case itself is taken up for final disposal.
2. In this civil revision petition, the fair and decreetal orders, dated 26.10.2016, passed in E.A.No.27 of 2015 in E.P.No.78 of 2009 in O.S.No.53 of 1979, on the file of the District Munsif Court, Theni, are challenged.
3. The above said E.A.No.27 of 2015 has been preferred by the revision petitioners under Order XXI Rules 97 and 99 of the Code of Civil Procedure.
4. It is found that the plaintiff / first respondent secured a decree of specific performance as against the defendants / respondents 2 and 3 in O.S.No.53 of 1979 and thereafter, on the obtainment of the sale certificate from the Court as regards the property involved in the matter, as the respondents 2 and 3 / defendants had not complied with the decree of the Court below, it is found that for taking delivery of the property involved in the matter, the first respondent / plaintiff has preferred E.P.No.78 of 2009 and at that stage of the matter, the application in E.A.No.27 of 2015, has been preferred by the revision petitioners, under the above said provision of law contending that the first respondent / plaintiff had obtained the decree in O.S.No.53 of 1979 fraudulently in collusion with the respondents 2 and 3 / defendants with a view to grab the property, which is in possession and enjoyment of the revision petitioners for several years. Further, according to the revision petitioners, inasmuch as they had been enjoying the property involved in the subject matter for several years by purchasing the same under various title deeds from the erstwhile owners as detailed in the petition and despite the knowledge of the same by the plaintiff and the defendants in the suit and not taking steps to implead them as parties to the suit proceedings, they having obtained the collusive decree based upon the fraudulent document, which is not binding upon them, it is stated that in the guise of the decree passed in the suit, the first respondent / plaintiff is not entitled to dispossess the revision petitioners from the property and therefore, according to them, the plaintiff / first respondent is not entitled to seek and obtain the possession of the property by way of the execution proceedings and hence, the execution petition is liable to be dismissed.
5. Strong resistance is put forth by the first respondent / plaintiff to the above said application preferred by the revision petitioners contending that only with a view to delay and defraud the first respondent / plaintiff from enjoying the fruits of the decree obtained by him as against the respondents / defendants in the said suit, the revision petitioners have preferred the application without any basis or valid ownership in respect of the property involved in the matter and the revision petitioners have not even pleaded or established as to what is the specific extent acquired by them in the property under the various sale deeds detailed by them in the application and the same are also not valid documents and the revision petitioners are put to strict proof of the same and the revision petitioners with a view to delay the execution proceedings have laid the vexatious application and hence, the same is liable to be dismissed.
6. The above said application preferred by the revision petitioners was discountenanced by the Court below on the footing that the revision petitioners cannot stifle the execution proceedings initiated by the first respondent / plaintiff by laying a claim in respect of the property involved in the matter and if at all the revision petitioners have got any right, title or interest in the subject matter, they have to initiate appropriate civil suit as per law and they cannot be allowed to agitate their rights and interests in respect of the property in the application preferred by them under Order XXI Rules 97 and 99 C.P.C., and further, the Court below has held that the revision petitioners have not endeavoured to establish their case by adducing convincing and reliable evidence in support their contentions and thereby held that the revision petitioners are not entitled to seek the relief sought for and accordingly, dismissed the application. Impugning the same, the present civil revision petition has been preferred.
7. It is mainly argued by the learned counsel for the revision petitioners that the Court below has erred in holding that the questions of the right, title and interest in the subject matter could not be determined in the application preferred under Order XXI Rules 97 and 99 of the Code of Civil Procedure and the said determination of the Court below is against law and in this connection, the learned counsel for the revision petitioners placed reliance upon the decisions reported in 1996 (2) MLJ SC 29 [Babual vs. Raj Kumar and others], 2001 (4) CTC 755 [N.S.S.Narayana Sarma and others vs. M/s.Goldstone Exports P. Ltd. and others], 2001 (1) CTC 287 : (2000) M.L.J. (Supp.) 538 [Elanthammal and another v. Alagar and another] and (2013) 7 MLJ 35 [B.Dhanam v. P.Usha Rani and Others]. Relying on the above said decisions, it is vehemently contended that in an application preferred under Order XXI Rules 97 and 99 C.P.C., the Court is bound to determine the questions of right, title or interest in the property in the execution application itself and the parties should not be driven to seek the remedy by filing a separate civil suit and in such view of the matter, according to the learned counsel for the revision petitioners, the Court below has erred in dismissing the application preferred by the revision petitioners on the above mentioned ground. No doubt, as argued by the learned counsel for the revision petitioners, the Court below has erred in holding that the revision petitioners have to establish their right only by resorting to a separate civil action and cannot get redressal in the application preferred by them under Order XXI Rules 97 and 99 C.P.C. A perusal of the above said decisions would go to show that the Executing Court itself is empowered to determine all such questions in the said application and the parties need not be directed to file a separate civil suit for the said purpose as found in Order XXI Rule 101 of the Code of Civil Procedure.
8. Be that as it may, as seen from the impugned order, the Court below has also held that the revision petitioners have not endeavoured to establish their case by adducing acceptable and reliable evidence and in such view of the matter also, the Court below has held that the revision petitioners are not entitled to obtain the reliefs sought for by them in the said application. As to the above determination of the Court below, there is no acceptable answer on the part of the revision petitioners as to why they have not endeavoured to adduce reliable and acceptable evidence to establish their case at least prima facie to enable the Court to decide the issue one way or the other. On the other hand, it is found that apart from merely alleging something in the application as if they have title to the property involved in the subject matter, that apart, the revision petitioners have not made any effort to adduce any evidence with reference to their case or to sustain their case and in such view of the matter, it is found that the Court below has rightly determined that the revision petitioners have failed to establish their right, title or interest in the property involved in the subject matter.
9. It is also found that the revision petitioners in the application have alleged that the plaintiff has obtained the decree fraudulently in collusion with the defendants 2 and 3 by creating a false sale agreement suppressing their right, title or interest in the property involved in the subject matter and also concealing the possession of the subject matter by the revision petitioners for several years and therefore, it is their case that the decree passed in the suit being fraudulently obtained by the plaintiff in collusion with the defendants, the plaintiff as such is not entitled to maintain the execution petition and take deliver of the property involved in the subject matter. However, as seen from the impugned order, it is found that though the revision petitioners have made serious allegations even as against the respondents 2 and 3 / defendants, it is found that the revision petitioners being unable to sustain their case as against them, despite sufficient opportunities given to them to pay necessary process for serving notice on the respondents / defendants 2 and 3, inasmuch as they have not taken adequate and appropriate steps to serve notice on the respondents 2 and 3 / defendants in their application, it is found that their application has come to be dismissed as against the respondents 2 and 3 / defendants. Therefore, when it is found that the case of the revision petitioners as regards the fraudulent obtainment of the decree by the plaintiff in collusion with the defendants being also not made out by the revision petitioners by adduction of acceptable and reliable evidence and when it is further found that the revision petitioners' application has come to be dismissed as against the defendants, it does not stand to reason or not properly explained by the revision petitioners as to how their application could be sustained as against the plaintiff alone and this position would only go to show that the revision petitioners have, without any rhyme or reason or any foundation, instituted the application and accordingly, it is found that they are unable to prosecute the application diligently by taking appropriate steps to serve notice on the defendants and also to endeavour to adduce evidence in support of their case.
10. Not stopping there, even in this civil revision petition, the revision petitioners have not endeavoured to take appropriate steps to serve notice on the respondents 2 and 3 / defendants and on the other hand, it is found that the revision petitioners have filed a Memo, dated 28.07.2017, before this Court stating that the third respondent / second respondent had died without any legal heir and inasmuch as the second respondent has been set ex parte in the Lower Court, they are giving up their claim as against the respondents 2 and 3 herein. However, the position remains that the execution application of the revision petitioners has been dismissed as against the defendants 2 and 3 by the Lower Court for not taking proper steps to serve notice on them in the said application. Therefore, it is found that even the Memo filed by the revision petitioners herein is nothing but misleading and not disclosed the true facts and therefore, it is found that on this score aloe, the revision petitioners are not entitled to obtain the relief sought for.
11. Further, when according to the revision petitioners, the decree has been obtained by the plaintiff with the collusion of the defendants to defeat the rights of revision petitioners and to grab the suit property, when their case as against the defendants has ended in dismissal, it has not been established as to how the revision petitioners could sustain their case as against the plaintiff alone, particularly, in the face of the dismissal of their application as against the respondents 2 and 3 / defendants.
12. Further, it is found that the Court below has passed the impugned order in the application preferred by the revision petitioners under Order XXI Rules 97 and 99 of the Code of Civil Procedure. In such view of the matter, it has not been established by the learned counsel for the revision petitioners as to how the civil revision petition would lie as against any order passed in an application preferred under Order XXI Rules 97 and 99 of the Code of Civil Procedure. The order amounting to a decree passed in a civil action as per Order XXI, Rule 103 of the Code of Civil Procedure, the remedy of the aggrieved party as against the order passed in such application is only to prefer appeal and the revision is not maintainable. In such circumstances, it is seen that the revision is barred as per Section 115(2) of the Code of Civil Procedure. In this connection, strong reliance is placed by the learned counsel for the plaintiff upon the decision reported in 2006 (3) CTC 171 [S.Rajeswari vs. S.N.Kulasekaran and others], which has been subsequently followed by our High Court in the decision reported in 2015 (1) CTC 516 [C.Murugan vs. Dr.Thilagavathy and another]. A perusal of the above said decision would go to show that the revision cannot be entertained by the High Court as against the order passed under Order XXI Rules 97 and 99 of the Code of Civil Procedure, as there is a clear prohibition under Section 115 (2) of Code of Civil Procedure, when an appeal remedy is provided to the said order as per Order XXI Rule 103 of the Code of Civil Procedure. Therefore, it is found that the revision preferred by the revision petitioners as against the impugned order is also found to be legally not maintainable.
13. However, stating that the present civil revision petition has been preferred by the revision petitioners invoking
Article 227 of the Constitution of India, it is contended by the learned counsel for the revision petitioners that this Court is empowered to take up the matter and dispose of the same as the right of the revision petitioners in respect of the property involved in the subject matter is sought to be disturbed or extinguished by the plaintiff. With reference to the above contention, the learned counsel for the revision petitioners' placed reliance upon the decisions reported in (2000) 2 M.L.J. 433 [Kuttiammal and others vs. Abraham and another] and 1999 (II) CTC 535 [Alagar @ Savugan and another vs. A.Baluchami and another]. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
14. Considering the facts and circumstances of the case, as above discussed, I am unable to accept the contention of the learned counsel for the revision petitioners that the present case is an extra-ordinary case, which requires interference by this Court by invoking
Article 227 of the Constitution of India. When in the light of the above discussions, it is found that the revision petitioners have not taken any care to sustain their case by adducing oral and documentary evidence in support of their case in the application preferred by them and when it is also found that the revision petitioners have left the case to go for dismissal as against the defendants, against whom also the revision petitioners have levelled allegations as if the decree passed in the suit had been fraudulently secured and when it is further found that the revision petitioners have given a misleading statement before this Court by way of filing a Memo, as if the second respondent has been set ex parte in the Lower Court, which as seen from the impugned order is found to be not true and the true position being the revision petitioners' application had been dismissed as against the defendants, it is found that the request of the revision petitioners' counsel to this Court to invoke the
Article 227 of the Constitution of India for offering the relief sought for by the revision petitioners cannot be accepted in any manner. Further, when the revision petitioners remedy as against the impugned order is only by preferring an appeal to the appropriate Court and when it is found that the present civil revision petition is not sustainable in the eyes of law as per the decision of the Apex Court and considering above reasons, it is found that the revision petition does not merit acceptance and accordingly, the civil revision petition is liable to be dismissed.
15. In the result, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
To:
The District Munsif, Theni .