IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 20.4.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal Nos.1703 and 1704 of 1998 1. M.Kumaraswamy 2. Visalakshi 3. V.Kumar 4. V.Raju 5. V.Ravichandran Appellants/ Plaintiffs (in both SAs) vs. 1. Nanjappa Gounder 2. Marimuthu (died) 3. M.Palaniswamy (died) 4. M.Krishnamoorthy 5. M.Rani 6. M.Sivam 7. M.Manickam 8. M.Rajamani 9. M.Kalavathy (RR5 to 9-brought on record as L.Rs. of the deceased R2 vide order of the court dated 8.4.2010 made in C.M.P.Nos.1757 to 1759 of 2009) 10. P.Vijayalakshmi 11. S.Revathy 12. P.Premraj 13. V.Malathi 14. Mrs.R.Jayanthi (RR10 to 14-brought on record as L.Rs. of the deceased R3 vide order of the court dated 21.9.2010 made in C.M.P.Nos.713 to 715 of 2010) Respondents in S.A.No.1703/98/ Defendants https://hcservices.ecourts.gov.in/hcservices/ 1. Nanjappa Gounder 2. Marimuthu (deceased) 3. Veelingiri 4. M.Palaniswamy (deceased) 5. Krishnamoorthy 6. M.Maragatham 7. M.Rajamani (deceased) 8. A.Ramadoss (died) 9. A.Subramaniam 10. Pappammal 11. A.Dhanalakshmi 12. S.Vijayalakshmi 13. V.Sundari 14. V.Thilaka 15. M.Rani 16. M.Sivam 17. M.Manickam 18. M.Rajamani 19. M.Kalavathy (RR15 to 19 - brought as L.Rs. of the deceased R2 vide order of the court dated 27.4.2010 made in C.M.P.Nos.1760 to 1762 of 2009) 20. P.Vijayalakshmi 21. S.Revathy 22. P.Premraj 23. V.Malathi 24. Mrs.R.Jayanthi (RR20 to 24 - brought as L.Rs. of the deceased R4 vide order of the court dated 21.9.2010 made in C.M.P.Nos.685 to 687 of 2010) 25. B.Kannabiran 26. Mrs.Vasantha 27. S.Muthulakshmi 28. B.Velusamy 29. B.Rajeswari (RR25 to 29 - brought as L.Rs. of the deceased R7 vide order https://hcservices.ecourts.gov.in/hcservices/ of the court dated 21.9.2010 made in C.M.P.Nos.688 to 690 of 2010) 30. Mrs.Nagarathinam 31. Senthil Kumar 32. Sudha ...Respondents in S.A.1704/98 / Defendants (RR30 to 32 - brought as L.Rs. of the deceased R8 vide order of the court dated 21.9.2010 made in C.M.P.Nos.691 to 693 of 2010) For appellants : Mr.K.V.Subramanian, Senior Counsel for Mr.C.R.Prasanan For Respondents counsel in S.A.1703 of 1998 Mr.M.V. Venkateseshan for R1 Mr.P. Subramanian for R4 Mr.K. Chozhan for RR5 to 9 Mr.A.L.Somayaji, Senior Counsel for Mr.C. Ravichandren Mr.R. Subramaniam for Mr.Pothi Raj for proposed Respondents in CMP.19/2010 For Respondents Counsel in SA.1704 of 1998 Mr.V. Venkatasamy for R1 Mr.P.M. Bakthavatsalam for RR5, 9 to 12 21,23,24,31 & 32 Mr.K. Chozhan for RR14 to 19, 25 to 29 Mr.A. Prabakaran for R22 Mr.AL. Somayaji, Senior Counsel for Mr.C. Ravichandren MR.V. Venkatasamy ...for proposed Respondents in CMP.20/2010 Prayer:- Second Appeals against the judgment and decree dated 18.4.1994 in A.S.Nos.68 and 69 of 1992 on the file of the I Additional District Judge, Coimbatore against the judgment and https://hcservices.ecourts.gov.in/hcservices/ decree dated 31.12.1991 in O.S.Nos.1436 of 1990 and 906 of 1989 on the file of the II Additional Subordinate Judge, Coimbatore. COMMON JUDGMENT The plaintiffs in O.S.No.1436 of 1990, who are also the defendants 4, 13 to 16 in O.S.No.906 of 1989, are the appellants. 2. Marudhachalam Chettiar was the owner of the suit property and according to the first respondent herein, the said Marudhachalam Chettiar entered into an agreement of sale on 22.8.1973 with him agreeing to sell the suit property and as the said Marudhachalam Chettiar failed to execute the sale deed as per the agreement of sale, the first respondent filed O.S.No.466 of 1975 for specific performance of the agreement of sale dated 22.8.1973 impleading Marudhachalam Chettiar and the first appellant and his brother Velliangiri whose legal representatives are appellants 2 to 5 and three others, who are all the sons of Marudhachalam Chettiar. In that suit, Marudhachalam Chettiar and defendants filed separate statements and later, the first respondent herein exonerated defendants 2 to 6 in that suit and the suit was dismissed as against defendants 2 to 6 and Marudhachalam Chettiar submitted to decree, and the suit was decreed as against the said Marudhachalam Chettiar on 21.7.1977. Thereafter, on 9.2.1978, the said Marudhachalam Chettiar handed over possession of the property to the first respondent herein and as the said Marudhachalam Chettiar did not execute the sale deed as per the decree passed in O.S.No.466 of 1975, the first respondent herein filed E.P.No.128 of 1988 against Marudhachalam Chettiar and during the pendency of the said E.P., he died and his legal representatives were added in that Execution Proceedings and they remained ex parte and thereafter the sale deed was executed on 12.4.1989 by court and eversince the handing over of possession by Marudhachalam Chettiar and from the date of sale, the first respondent claims to be in possession of the property as the owner and as his possession is sought to be disturbed by the appellants and respondents 2 to 19, the first respondent filed the suit for injunction in O.S.No.906 of 1989. 3. The appellants filed the suit in O.S.No.1436 of 1990 against respondents 2 to 4 for declaration and injunction stating that the suit property was the self-acquired property of Marudhachalam Chettiar and under a registered settlement deed dated 26.10.1973, Marudhachalam Chettiar settled the property in favour https://hcservices.ecourts.gov.in/hcservices/ of his sons viz., the first appellant and Velliangiri, whose legal representatives are appellants 2 to 5 and possession was also handed over to the plaintiffs by Marudhachalam Chettiar and they were in possession and enjoyment of the same. The sale agreement alleged to have been executed by Marudhachalam Chettiar in favour of the first respondent was not a valid one and there was no necessity for Marudhachalam Chettiar to borrow a sum of Rs.25,000/= and the agreement of sale in favour of the first respondent to settle the said debt was also not true and the decree in O.S.No.466 of 1975 was also not binding on the appellants as they were exonerated from the suit. Though the first appellant and his brother Velliangiri earlier filed O.S.No.604 of 1978 against the first respondent and Marudhachalam Chettiar for declaration of their title and for injunction on the basis of the settlement deed executed by Marudhachalam Chettiar in favour of the first appellant and Velliangiri by reason of the fraud played by the first respondent and others, that suit was dismissed for default and that was known to the first appellant and his brothers only later and the brother of the first appellant viz., Velliangiri was not heard for so many years and therefore, he was presumed to be dead and hence, his legal representatives viz., appellants 2 to 5 and the first appellant filed the suit in O.S.No.1436 of 1990 for declaration and injunction on the basis of the settlement deed executed in their favour by Marudhachalam Chettiar. In that suit, the first respondent contended that the appellants are bound by the decree passed in O.S.No.466 of 1975 and even though they were exonerated in E.P.No.128 of 1988, they were impleaded as legal representatives of Marudhachalam Chettiar and they remained ex pare and thereafter, the sale deed was executed by the court in favour of the first respondent and possession was already handed over to the first respondent by Marudhachalam Chettiar on 9.2.1978 and appellants 2 to 5 are not entitled to maintain the suit as it was not declared that Velliangiri was dead and therefore, the suit filed by the appellants is not maintainable. 4. Both the suits were tried together and both the courts below have concurrently held that the first respondent herein is the owner of the suit property as the sale deed was executed in his favour by the court and he is in possession of the property and the appellants have not proved that Velliangiri was not heard for seven years and therefore, appellants 2 to 5 cannot represent Velliangiri as he is alive and they have already filed the suit in O.S.No.604 of 1978 for declaration of their title and injunction based on the settlement deed dated 26.10.1973 and that suit was https://hcservices.ecourts.gov.in/hcservices/ dismissed for default and therefore, the subsequent suit in O.S.No.1436 of 1990 is barred under Order IX Rule 9 of the Code of Civil Procedure and even as per the agreement entered into between the parties on 3.7.1978, it was agreed that if the amount as stated therein was not paid to the first respondent, the first respondent is entitled to the suit property as per the decree passed in O.S.No.466 of 1975 and as per the agreement dated 3.7.1978, the appellants have not proved the payments to the first respondent and therefore, as per the said agreement, the appellants and other respondents lost their right in the suit property and therefore, the first respondent herein is entitled to decree and the appellants are not entitled to the decree and decreed the suit filed by the first respondent and dismissed the suit filed by the appellants. Hence, these two second appeals. 5. The following substantial questions of law were framed at the time of admission in "S.A.No.1703 of 1998 1. Whether in law, the courts below have not erred, in overlooking that the first respondent, who is the plaintiff in O.S.No.906 of 1989, lost his right to execute the decree in O.S.No.466 of 1975 after having given up the same expressly by executing Exhibit A9 thus acknowledging the title of the defendants 1 to 3. 2. Whether in law, the courts below have not erred in holding that the suit O.S.No.1436 of 1990 was barred by limitation, overlooking that the decree in O.S.No.466 of 1975 became non est in law after Exhibit A9 was executed. 3. Whether in law, the courts below have not erred in holding that the suit O.S.No.1436 of 1990 was barred as the previous suit in O.S.No.604 of 1978 was dismissed for default overlooking that even according to first respondent herein, the said suit in O.S.No.604 of 1978 was to be withdrawn as per Clauses found in Exhibit A9. 4. Whether in law, the Courts below have not erred in presuming procession in favour of the first respondent herein, on the basis of Ex.A19 to A22 overlooking that he cannot maintain the suit for injunction against the appellants even after they were exonerated by him in O.S.No.466 of 1975 itself. https://hcservices.ecourts.gov.in/hcservices/ S.A.No.1704 of 1998 1. Whether in law, the courts below ought not to have seen that the decree and judgment in O.S.No.466 of 1975 are not binding on the appellants since the plaintiff therein gave up the defendants 2 to 5? 2. Whether in law the courts below have not erred in holding that the decree in O.S.No.466 of 1975 ought to have been set aside when as a fact defendants 2 to 5 were exonerated by the plaintiff? 3. Whether in law the courts below have not erred in overlooking that the plaintiff and the first defendant colluded with each other and consequently a fraudulent decree has been obtained, which is a nullity vide 1994, I LW 235? 4. Whether in law, the courts below have not erred in holding that the suit in O.S.No.1436 of 1990 was barred as the previous O.S.No.604 of 1978 was dismissed for default overlooking that even according to the first defendant in the said suit the O.S.No.604 of 1978 was to be withdrawn as per clauses found in Exhibit A9?" 6. Mr.K.V.Subramanian, learned Senior Counsel appearing for the appellants submitted that the decree in O.S.No.466 of 1975 is not binding on the appellants as they were exonerated in that suit and therefore, they were not parties in that suit and therefore, they will not come under the definition of person as stated in Section 47 of the Code of Civil Procedure and therefore, the decree passed in O.S.No.466 of 1975 is not binding on them. He further contended that after the execution of the settlement deed, Ex.B3 in favour of the appellants, they became the owner of the property and as per the settlement deed, possession was handed over to them and therefore, Marudhachalam Chettiar could not have handed over vacant possession to the first respondent under Ex.A7 and the sale deed executed by the court in pursuant to the order passed in E.P.No.128 of 1988 is also not binding on them. According to the learned Senior Counsel, though the appellants were made parties to E.P.No.128 of 1988, they were impleaded in the capacity of legal representatives of Marudhachalam Chettiar, who were the judgment debtors and when they were impleaded as the legal representatives of Marudhachalam Chettiar, they cannot agitate their independent claim in that suit and they have to take the defence of https://hcservices.ecourts.gov.in/hcservices/ Marudhachalam Chettiar and therefore, even assuming that they were parties to E.P.No.128 of 1988, the sale is not binding on them. He further submitted that Ex.A9 ought not to have been relied upon by the court below and if Ex.A9 was taken into consideration, a new contract came into force between the parties and therefore, the first respondent is not entitled to maintain the suit in O.S.No.906 of 1989 for injunction inasmuch as in the said agreement, the first respondent has agreed to give up his right under the decree obtained in O.S.No.466 of 1975 and agreed to receive various amounts from the legal representatives of Marudhachalam Chettiar and therefore, his only remedy is to file a suit for recovery of amount as stated in Ex.A9 and the dismissal of the suit in O.S.No.604 of 1978 filed by them was only as per the conditions stated in Ex.A9 and therefore, that dismissal order will not stand in the way of filing of the present suit for declaration and injunction and in any event, there is a valid settlement in their favour by their father Marudhachalam Chettiar even prior to the suit filed by the first respondent in O.S.No.466 of 1975 and therefore, the subsequent purchasers or subsequent owners ought to have been made as parties in the suit for specific performance and even though the appellants were made parties to O.S.No.466 of 1975, they were exonerated by the first respondent and therefore, the suit for specific performance without impleading the subsequent purchasers cannot bind the subsequent purchasers and relied upon the judgments reported in DURGA PRASAD AND ANOTHER v. DEEP CHAND AND OTHERS (AIR 1954 SC 75), VIMALA AMMAL v. C.SUSEELA (AIR 1991 MADRAS 209), CHINNA VANAN v. ALAMELU (1975 (1) MLJ 263) for that proposition. He further relied upon the judgment reported in RAMALINGAM v. VENUGOPAL (2000 MLJ (Supp.) 141 for the proposition that when a suit was dismissed for default pursuant to an agreement entered into between the parties to the suit, that dismissal order cannot be brought under the category of Order IX Rule 9 and the subsequent suit is maintainable. He further relied upon the judgment reported in NARAYANAPPA v. P.D.KHURANA (AIR 1953 MYSORE 153) for the proposition that the legal representatives of the deceased defendant cannot raise pleas which are open to them in their individual capacity in execution petition filed by the decree holder. He further relied upon the judgment reported in RADHA NATH v. RAM CHANDRA (AIR 1954 CALCUTTA 367) for the proposition that the dismissal of a suit against a particular party on the ground that he is not a necessary party, is not a dismissal within the scope of section 47 and therefore, the appellants are not bound by the decree passed in O.S.No.466 of 1975 and they could not have raised objection in the execution petition in E.P.No.128 of 1988 even https://hcservices.ecourts.gov.in/hcservices/ though they were made as parties in the capacity of legal representatives of the judgment debtor. 7. On the other hand, Mr.A.L.Somayaji, learned Senior Counsel submitted that under Ex.A9 it was agreed among the parties that if the amount stated therein were not paid to the first respondent, they cannot have any right against the first respondent in respect of the suit property and it was also agreed that the appellants should withdraw the suit in O.S.No.604 of 1978 and as per the terms of the agreement, though the appellants withdrew the suit in O.S.No.604 of 1978, by not prosecuting the same and allowed the suit to be dismissed for default, they have not acted according to the terms of the settlement by paying amount to the first respondent and therefore, as per the terms of Ex.A9, the first respondent became the owner of the property and the appellants and other respondents cannot question his title. The learned Senior Counsel further submitted that even though a suit was dismissed as against a particular defendant on the ground that he was exonerated, he continues to be a party as per section 47 of the Code of Civil Procedure and he ought to have raised objections while executing the decree in O.S.No.466 of 1975 and in the absence of any objection raised by the appellants, it is not open to the appellants to raise the said plea and relied upon the judgment reported in V.K.KELU ACHAN AND ANOTHER v. THANDAVAN CHETTIAR AND ANOTHER (AIR 1933 MADRAS 340) and VADDADI SANNAMMA v. KODUGANTI RADHABHAYI AND OTHERS (AIR 1918 MADRAS 123). He further submitted that as per section 47 of the Code of Civil Procedure, a purchaser, in execution of a decree, is also a party to the suit and in this case, the appellants were parties to a suit in O.S.No.466 of 1975 and even though they were exonerated and the suit was dismissed as against them, they remained parties to the suit and ought to have raised all the objections in the execution petition and a separate suit is not maintainable. He further submitted that as per the agreement Ex.A9, the appellants alone were not entitled to the suit property and the other legal heirs of Marudhachalam Chettiar were given various extent and therefore, even assuming that a new contract has come into existence, the first respondent cannot rely upon the decree passed in O.S.No.466 of 1975 without impleading the other legal heirs of Marudhachalam Chettiar and the suit filed by the appellants for declaration was not maintainable and the appellants are also not entitled to the entire suit property. https://hcservices.ecourts.gov.in/hcservices/ 8. Mr.R.Subramanian, learned counsel for the respondent submitted that the appellants filed O.S.No.604 of 1978 and that suit was allowed to be dismissed for default and under Order IX Rule 9, the subsequent suit is barred on the same cause of action and in this case, it is admitted that O.S.No.604 of 1978 was filed for declaration and injunction on the basis of the settlement deed, Ex.B3 and therefore, the subsequent suit in O.S.No.1436 of 1990 is barred. He further submitted that even though the parties have not pleaded about Ex.A9 in their plaint in both the suits, and no issue was framed regarding Ex.A9, the fact remains that the case was contested on the basis of Ex.A9, evidence was let in by both the parties and as a matter of fact, the 16th defendant in O.S.No.906 of 1989 had stated about the agreement, Ex.A9 and as the parties led evidence and contested the suit knowing fully well about Ex.A9, it is not open to them to turn around and contend that Ex.A9 could not be looked into. He relied upon the judgment in KALI PRASAD AGARWALLA v. BHARAT COKING COAL LIMITED (1989 Supp. (1) SCC 628). He further submitted that even in the second appeal, the substantial questions of law were framed only with respect to Ex.A9 and the appellants relied upon Ex.A9 and contended that as per Ex.A9, the first respondent is not entitled to claim any right in O.S.No.466 of 1975 and hence, it is not open to the appellants to ignore Ex.A9. He further submitted that as per Ex.A9, the parties never intended to extinguish the decree in O.S.No.466 of 1975 and it was agreed between the parties that various amounts are to be paid by the legal representatives of Marudhachalam Chettiar in favour of the first respondent and if they failed to make the payment, they cannot question the right of the first respondent and therefore, under the agreement, Ex.A9, a new contract did not come into force and reciprocal promises were to be performed and the effect of non performance was stated and as the appellants did not make the payment as per the terms of the agreement, Ex.A9, the decree passed in O.S.No.466 of 1975 cannot be questioned by them and they are bound by the same. He further relied upon the judgment in SURAJ RATTAN v. AZAMABAD TEA CO. (AIR 1965 SC 295) and PARASRAM HARNAND RAO v. SHANTI PARSAD NARINDER KUMAR JAIN (AIR 1980 SC 1655) in support of his contention that the present suit is barred under Order IX Rule 9 of the Code of Civil Procedure as the earlier suit filed by the appellants in O.S.No.604 of 1978 was allowed to be dismissed for default. 9. Mr.M.V.Venkataseshan, learned counsel for the first respondent submitted that as per the judgment reported in RANJITH AMMAL v. SIVASUBRAMANIAN ((2010) 4 MLJ 1002 and the judgment https://hcservices.ecourts.gov.in/hcservices/ reported in KANDAPAZHA NADAR v. CHITRAGANIAMMAL ((2007) 7 SCC 65), the subsequent suit in O.S.No.1436 of 1990 filed by the appellants after the dismissal of O.S.No.604 of 1978 is barred and therefore, O.S.No.1436 of 1990 is not maintainable. He also filed C.M.P.Nos.165 and 166 of 2011 in Second Appeal Nos.1703 and 1704 of 1998 respectively to receive the suit extract register in O.S.No.604 of 1978 as additional evidence and contended that though sufficient pleadings and evidence are available to arrive at a conclusion that O.S.No.604 of 1978 filed by the appellants was for declaration and injunction on the basis of the settlement deed, Ex.B3, executed by Marudhachalam Chettiar and a certified copy of the decree passed in O.S.No.604 of 1978 was also filed as Ex.B6, as all the particulars of the suit in O.S.No.604 of 1978 was not stated in Ex.B6, the suit extract register may be received in evidence which would throw light about the nature of suit filed in O.S.No.604 of 1978 and that document will help the court to decide the issue and therefore, the document may be received in evidence. It is further contended that the suit filed by the legal representatives of Velliangiri alongwith the first appellant is not maintainable and in Ex.A38 letter written by Palanichamy one of the brothers of Velliangiri and Kumarasamy, he mentioned about Velliangiri's presence and state that Velliangiri refused to sign the document and claimed no interest in the properties and therefore, it cannot be contended that Velliangiri was not heard of for more than seven years and therefore, when Velliangiri was alive, appellants 2 to 5 cannot maintain a suit on his behalf. 10. Heard the counsel. In this case, certain facts are admitted. Marudhachalam Chettiar was the owner of the property and he had five sons. It is the case of the first respondent that Marudhachalam Chettiar executed an agreement of sale deed 22.8.1973 agreeing to sell the property to him and he field the suit in O.S.No.466 of 1975 to enforce the agreement of sale. Even prior to the filing of the suit in O.S.No.466 of 1975, Marudhachalam Chettiar settled the suit property in favour of his two sons Kumarasamy and Velliangiri and the first appellant and the predecessor-in- title of appellants 2 to 5. In O.S.No.466 of 1975, the first respondent impleaded Marudhachalam Chettiar and his five sons and all of them have filed statements and later defendants 2 to 6 viz., the sons of Marudhachalam Chettiar were exonerated and the suit was dismissed as against them and Marudhachalam Chettiar submitted to decree and decree was passed against Marudhachalam Chettiar and he was directed to execute sale deed as per the agreement of sale. The decree was passed on 21.7.1977. Thereafter, https://hcservices.ecourts.gov.in/hcservices/ under Ex.A7, Marudhachalam Chettiar handed over possession of the suit property to the first respondent and on 14.4.1978, an agreement was entered into between Marudhachalam Chettiar and his son Krishnamurthy, Paappammal, Ramdoss, Maragatham and Dhanalakshmi and Nanjappa Gounder, the first respondent, wherein the decree passed in O.S.No.466 of 1975 was mentioned. Thereafter, an agreement was entered into between Marudhachalam Chettiar and his sons, grandchildren and the first respondent and in that agreement, Ex.A9, the parties admitted the handing over of possession to the first respondent under