Revision challenging the proceedings/order of delivery of possession dated 03.04.2009, made in R.E.P. No.165 of 1981 in O.S.No.81 of 1964, on the file of the Sub Court, Tirupattur.
2. The petitioners are 16 to 18th judgment-debtors in R.E.P.No.165 of 1981 in Tirupattur Sub Court in O.S.No.81 of 1964 on the file of the District Munsif Court, Tirupattur is sought to be executed directing delivery of the suit properties in favour of the decree-holders/1 to 4th respondents. The execution petition was resisted by the Judgment-debtors. The Executing Court, on 26.08.2002, passed an order of delivery of properties. These petitioners carried the matter in Revision before this Court in C.R.P.No.1279 of 2002 and this Court, on 22.01.2009, dismissed the Civil Revision Petition confirming the order passed by the Executing Court from which these petitioners preferred S.L.P.No.5513 of 2009 before the Hon'ble Supreme Court challenging the order passed by this Court in Civil Revision Petition. But the said Special Leave Petition, was also dismissed by the Hon'ble Supreme Court. Hence, on 03.04.2009, the Executing Court ordered delivery of the properties by 03.06.2009, by observing that even though it was contended by the judgment-debtors that the decree-holders has no locus standi to continue the Execution Proceedings and the rights were transferred to third parties and subsequently, the delivery was already ordered and stay was vacated. This is the order challenged before this Court in this Revision.
3. The mainstay of the petitioners is that the decree-holders have transferred their interest in the properties by means of registered documents by virtue of the deeds dated 25.04.2008 and 14.07.2008 to J.Thamilmaran and therefore, they have lost their rights to prosecute the execution petition after transfer of rights in respect of the decree and therefore, the order directing the delivery of possession is perverse and that grant of permanent injunction, in O.S.No.154 of 2001, by the District Munsif Court, Tirupattur, restraining the decree-holders from interfering with their possession, is a bar for execution and they have no right to maintain the Execution Petition before the decree is set aside.
4. It is further contended that the Execution Petition is not maintainable insofar as the decree stands transferred to the purchaser in view of the terms of the sale deed declaring that the purchaser shall be entitled to take possession and therefore, the order is without jurisdiction.
5. In the grounds of revision, so many other grounds have been raised inclusive of the period of limitation for execution of the decree, but, all of them were already decided by this Court and the same have been upheld by the Apex Court. Hence, the only question remaining is that whether in spite of the transfer of rights, the decree-holders are entitled to take execution of the decree?
6. Mr.S.Parthasarathi, learned Senior Counsel appearing for the respondents would place reliance upon a decision reported in AIR 1935 Madras 383 (Nayinsikh Jayanarayana v. Seerapu Polayya and others) wherein a Division Bench of this Court has held that the only person in whose favour the decree was, on the face of it, was the original decree-holder and the executing Court was bound to regard him as the person entitled to execute the decree and could regard no other person as such and that in 18 Cal 639 (1) it was held that the person appearing on the face of the decree as the decree holder is entitled to execution unless it be shown by some other person that he has taken the decree-holder's place. In AIR 1983 Punjab and Haryana 50 Full Bench of the High Court of Punjab and Haryana, while dealing with the identical situation has held as follows:
"Aggrieved thereby the decree-holders have filed this Appeal (E.S.A.No.2124 of 1976). The view of the lower appellate Court is obviously against law because the provisions of R.16, O.21, Civil.P.C., are only enabling and the transferees if they so desired, could get themselves impleaded as decree-holders in place of the original one. So long as this is not done, the person whose name appears as decree-holder in the decree is entitled to execute the decree. Reference in this respect may profitably be made to a Full Bench decision of the Andhra Pradesh High Court in Arvapalli Ramrao v. Kanumarlapudi Ranganaykulu, AIR 1964 Andh Pra 1; Mithan Lal v. Thana; AIR 1964 All 337 and Bajirao Domaji Shreerang v. Kashirao Ajaibrao Deshmukh, AIR 1978 Bom 350."
7. In a decision of the Bombay High Court reported in 1978 BOMBAY 350 (Bajirao Domaji Shreerang and others v. Kashirao Ajabrao Deshmukh) it is observed that under Order 21, Rule 16, C.P.C. the transferee has an option to apply for execution. The use of the verb may indicate that a decree-holder can continue to execute this decree notwithstanding the assignment as long as his name continues to appear as a person in whose favour a decree is passed. In other words, therefore, the transferor's right to execute the decree is not taken away as long as the transferee is not recognised and accepted by the Court.
8. The Supreme Court in (2009) 6 Supreme Court Cases 609 (Sardar Estate v. Atma Ram Properties Private Limited) has held that it is evident that frivolous objection have been filed in the execution case which is an abuse of the process of the Court and a flagrant violation of the eviction decree against the appellant, against which, appeals had been rejected and even Special Leave Petition in this Court was dismissed. In a decision of this Court reported in 1995 (2) CTC 198 (Indira Nagar Residents' Benefit Society, rep. by its Secretary K.Arunachalam, 6, Arunachalam Road, Madras 600 093 v. The Government of Tamil Nadu rep. by the Chief Secretary, Madras 9 and nine others) it is held that failure to raise grounds which might and ought to have been raised in earlier proceedings would debar raising new grounds in subsequent proceedings where principle of constructive res judicata would apply.
9. Even though the Civil Revision Petition before this Court was filed in the year 2002, much earlier to the alleged sales by the decree-holders, it came to be disposed of on 22.01.2009. In the meanwhile, the sales were effected on 25.04.2008 and 14.07.2008. This fact was not brought before this Court at the time of hearing of Civil Revision Petition and hence, the petitioners ought to have been treated to have waived their rights in raising such grounds in future proceedings. As observed by the Supreme Court, the present objection is a frivolous one, since the order passed in the Civil Revision Petition was confirmed by the Supreme Court and Special Leave Petition filed by these petitioners faced dismissal.
10. From the above said decisions, it has been settled that even though the interest of the properties were transferred by the decree-holder to a third-party transferee, until the name of the transferee is brought to record, the decree-holder has got every right to execute the decree so long as his name continues to appear in the execution petition as if he is the party competent to execute the decree.
11. In such view of this matter, the present objection to the further execution proceedings by the petitioners is not sustainable and the same has to be returned down and the same is rejected. Hence, the order challenged before this Court deserves to be confirmed and it is confirmed and there is no need for interfering with it. This Civil Revision Petition is devoid of merits.
12. In fine, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.
srm To
1.The Sub Court, Tirupattur.
2.The District Munsif Court, Tirupattur