1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.07.2019 CORAM: THE HONOURABLE MR.JUSTICE S.S. SUNDAR C.R.P.(NPD)(MD).Nos.845 to 849 of 2005 and C.M.P.(MD).Nos.5635 to 5638 of 2005 & 9791 of 2017 C.R.P.(MD).No.845 of 2005 1.Govindarajan 2.Santhanakrishnan (Died) 3.Nandagopalan 4.Meenakshi 5.Mohanasundarganapathi 6.Dilip .. Petitioners (Petitioners 4 to 6 are brought on record as Legal heirs of deceased 2nd petitioner, vide Court dated 09.10.2017 made in C.M.P. (MD).Nos.8460 to 8474 of 2017) /Vs./ 1.M.Sankaramani 2.M.Balaji 3.Ponnammal Hameed 4.Sankari 5.Muktha 6.Meena 7.Vijayaragavan 8.S.Vasuki .. Respondents (Respondents 3, 5 to 8 are given up) Prayer: Civil Revision Petition filed under Sections 115 of Civil Procedure Code, against the order, dated 18.10.2004, made in E.P.No.116 of 1987 in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. For Petitioners : Mr.D.Nallathambi Respondents 3,5 to 8 : Given up Respondents 1,2,4 : No Appearance C.R.P.(MD).No.846 of 2005 1.Govindarajan 2.Santhanakrishnan (Died) 3.Nandagopalan 4.Meenakshi 5.Mohanasundarganapathi 6.Dilip .. Petitioners https://hcservices.ecourts.gov.in/hcservices/ 2 (Petitioners 4 to 6 are brought on record as Legal heirs of deceased 2nd petitioner, vide Court dated 09.10.2017 made in C.M.P. (MD).Nos.8460 to 8474 of 2017) /Vs./ 1.C.Jayabalan 2.Vijayaragavan 3.Kalyani @ Vairampal 4.S.Vasuki 5.Muthammal 6.Muthukrishnan 7.M.Sankaramani 8.M.Balaji 9.Sarojiniammal 10.Ponnammal Hameed 11.Sankari 12.Muktha 13.Meena .. Respondents (Respondents 2 to 6,9,10,12 & 13 are given up) Prayer: Civil Revision Petition filed under Sections 115 of Civil Procedure Code, against the order, dated 18.10.2004, made in E.A.No.373 of 2004 in E.P.No.116 of 1987 in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. For Petitioners : Mr.D.Nallathambi Respondents 2 to 6,9,10,12 & 13 : Given up Respondents 1, 7, 8, 11 : No Appearance C.R.P.(MD).No.847 of 2005 1.Govindarajan 2.Santhanakrishnan (Died) 3.Nandagopalan 4.Meenakshi 5.Mohanasundarganapathi 6.Dilip .. Petitioners (Petitioners 4 to 6 are brought on record as Legal heirs of deceased 2nd petitioner, vide Court dated 09.10.2017 made in C.M.P. (MD).Nos.8460 to 8474 of 2017) /Vs./ 1.C.Maheswari Chellappa 2.Vijayaragavan 3.Kalyani @ Vairampal 4.S.Vasuki 5.Muthukrishnan 6.M.Sankaramani 7.M.Balaji 8.Sarojiniammal 9.Ponnammal Hameed https://hcservices.ecourts.gov.in/hcservices/ 3 10.Sankari 11.Muktha 12.Meena .. Respondents (Respondents 2 to 5,8,9,11 & 12 are given up) Prayer: Civil Revision Petition filed under Sections 115 of Civil Procedure Code, against the order, dated 18.10.2004, made in E.A.No.494 of 2003 in E.P.No.116 of 1987 in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. For Petitioners : Mr.D.Nallathambi Respondents 2 to 5,8,9,11 & 12 : Given up Respondents 1, 6, 7 & 10 : No Appearance C.R.P.(MD).No.848 of 2005 1.Govindarajan 2.Santhanakrishnan (Died) 3.Nandagopalan 4.Meenakshi 5.Mohanasundarganapathi 6.Dilip .. Petitioners (Petitioners 4 to 6 are brought on record as Legal heirs of deceased 2nd petitioner, vide Court dated 09.10.2017 made in C.M.P. (MD).Nos.8460 to 8474 of 2017) /Vs./ 1.M.Jayabalan 2.Vijayaragavan 3.Kalyani @ Vairampal 4.S.Vasuki 5.Muthammal 6.Muthukrishnan 7.M.Sankaramani 8.M.Balaji 9.Sarojiniammal 10.Ponnammal Hameed 11.Sankari 12.Muktha 13.Meena .. Respondents in C.R.P.(MD).No.848 of 2005 (Respondents 2 to 6,9,10,12 & 13 are given up) Prayer: Civil Revision Petition filed under Sections 115 of Civil Procedure Code, against the order, dated 18.10.2004, made in E.A.No.372 of 2004 in E.P.No.116 of 1987 in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. For Petitioners : Mr.D.Nallathambi Respondents 2 to 6,9,10,12 & 13 : Given up Respondents 1, 7, 8, 11 : No Appearance https://hcservices.ecourts.gov.in/hcservices/ 4 C.R.P.(MD).No.849 of 2005 1.Govindarajan 2.Santhanakrishnan (Died) 3.Nandagopalan 4.Meenakshi 5.Mohanasundarganapathi 6.Dilip .. Petitioners (Petitioners 4 to 6 are brought on record as Legal heirs of deceased 2nd petitioner, vide Court dated 09.10.2017 made in C.M.P. (MD).Nos.8460 to 8474 of 2017) /Vs./ 1.J.chandrakantha 2.Vijayaragavan 3.Kalyani @ Vairampal 4.S.Vasuki 5.Muthammal 6.Muthukrishnan 7.M.Sankaramani 8.M.Balaji 9.Sarojiniammal 10.Ponnammal Hameed 11.Sankari 12.Muktha 13.Meena .. Respondents (Respondents 2 to 6,9,10,12 & 13 are given up) Prayer: Civil Revision Petition filed under Sections 115 of Civil Procedure Code, against the order, dated 18.10.2004, made in E.A.No.374 of 2004 in E.P.No.116 of 1987 in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. For Petitioners : Mr.D.Nallathambi Respondents 2 to 6,9,10,12 & 13 : Given up Respondents 1, 7, 8, 11 : No Appearance COMMON ORDER The petitioners in all the Civil Revision Petitions are the decree holders in the suit in O.S.No.1129 of 1980 on the file of the I Additional Subordinate Judge, Madurai. 2.The brief facts that are necessary for the disposal of the Civil Revision Petition are as follows: Originally the father of Revision Petitioners filed a suit in O.S.No.1129 of 1980 on the file of the Principal Sub Court, for specific performance of an agreement of sale and the suit was decreed ex-parte initially on 23.11.1981. Though the ex- parte decree, dated 23.11.1981, was set aside on 09.03.1982, later an ex-parte decree was again passed on 17.03.1983. Thereafter, the petitions filed by the judgment debtors to set aside the ex-parte https://hcservices.ecourts.gov.in/hcservices/ 5 decree, dated 17.03.1983 in I.A.Nos.358 to 360 and 559 of 1983 were dismissed on 14.12.1983. The Civil Miscellaneous Appeal filed by the judgment debtors in C.M.A.Nos.617 to 621 of 1984 before this Court was dismissed on 11.04.1991. On 16.04.1994, the first respondent in the respective revision petitions purchased portions of the property which is the subject matter of the suit in O.S.No.1129 of 1980 from the judgment debtors. 3.Further appeals filed in L.P.A.Nos.102 to 105 of 1991 as against the order in Civil Miscellaneous Appeals were also dismissed on 06.02.1997. Thereafter, in execution proceedings in E.P.No.116 of 1987, the sale deed was executed on 15.12.1999. It is also stated that respondents 3 and 4 in the execution petition filed a petition to set aside the ex-parte order of delivery and the same was allowed. When the execution petition was posted for arguments, the purchasers of property pending Execution proceedings filed a petition in E.A.Nos.494 of 2003 and 372 to 374 of 2004 under Order 21 Rule 97 r/w Section 151 of C.P.C. The prayer in the petitions was to allow the claim petition in respect of the portion purchased by them from the judgment debtors subsequent to the decree. All these petitions were allowed by the lower court mechanically without considering the statutory provisions and on an erroneous understanding of law. The lower court though observed that the execution applications had been filed by petitioners who are pendente lite purchasers held that the alienations are not hit by lis pendens and allowed the claim applications filed by the first respondent in all the revision petitions on the ground that they purchased the property from one Balaji Sankar and Sankaramani who are though, the sons of second defendant in the suit in O.S.No.1129 of 1980, are not parties to the suit or in E.P.No.116 of 1987. It is not in dispute that the property was sold by one Balaji Sankari and Sankaramani who are brought on record in 1998 as the legal representatives of the second defendant Muthu Krishnan. Though the lower court was on a wrong impression that the petitioners in the claim petition were not impleaded till 1998, the decree of Principal Sub Court, Madurai in O.S.No.1129 of 1980, dated 17.03.1983 shows that persons who executed the sale deeds in favour of the claim petitioners were parties in the suit. Inasmuch as the suit was decreed as against the father of Balaji and Sankara mani, the decree is binding on the persons who sold the property in favour of the claimants. Admittedly, the alienations were after the decree. 4.Order 21 Rule 102 reads as follows: “102 . Rules not applicable to transferee pendent lite— Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.” https://hcservices.ecourts.gov.in/hcservices/ 6 In view of the specific provisions of Order 21 Rule 102 a person claiming under the judgment debtor cannot resist or obstruct the execution of the decree. Ignoring the specific provisions, the lower court allowed the claim petition on the ground that the petitioners in the claim petitions are bonafide purchasers for value and hence their sale deeds are valid to give them an independent right. 5.Learned counsel for the revision petitioners / decree holder relied upon a judgment of Division Bench of this Court in the case of Vijayalakshmi Leather Industries (P) Ltd., Chennai – 3 Vs. K.Narayanan and others reported in 2003-1-L.W.772. The honourable Division Bench after referring to Rule 98 and 102 held that the transferee from the judgment debtor would also include a transferee of a transferee from the judgment debtor. It is further held by the Division Bench that the Court must give weight to the intention of the statute in order to give effect to the provisions of the statute. It was further held that order 21 Rule 102 and Section 52 of Transfer of Property Act protect the rights of the parties to the proceedings pending before the Court and that by securing a right during the pendency, the petitioners in the claim petition cannot enforce such right to prejudice the decree holder. 6.Despite notice being served for the contesting respondent, no one appeared on behalf of them. The counsel on record Mr.M.Alaguthevan is absent today. 7.The lower court entertained the application filed by the transferees pendente lite from the legal heirs of the defendants in the suit who were also made parties to the proceedings. Hence the claim petitions are not maintainable nor can be entertained on any misplaced sympathy. 8.Accordingly, these civil revision petitions are allowed. The order, dated 18.10.2004, made in E.P.No.116 of 1987, E.A.Nos.372 to 374 of 2004 and 494 of 2003 in O.S.No.1129 of 1980, on the file of the I Additional Subordinate Judge, Maudrai, is set aside. E.P.No.116 of 1987 in O.S.No.1129 of 1980, on the file of the I Additional Subordinate Judge, Madurai, is allowed and the E.A.Nos.372 to 374 of 2004 and 494 of 2003 in E.P.No.116 of 1987 in O.S.No.1129 of 1980, on the file of the I Additional Subordinate Judge, Madurai, are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CS-II) // True Copy // Sub Assistant Registrar(CS) TM https://hcservices.ecourts.gov.in/hcservices/ 7 To 1.The I Additional Subordinate Judge, Madurai. Copy to 2.The Section Officer, E.R/V.R.Section, Madurai Bench of Madras High Court, Madurai. (2 copies) +1CC TO MR.D.NALLATHAMBI, Advocate Sr. No. 73613 C.R.P.(NPD)(MD).Nos.845 to 849 of 2005 04.07.2019 DK(CO) TR (22.07.2019) 7P 5C https://hcservices.ecourts.gov.in/hcservices/