IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2011 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN C.M.S.A.No.20 of 2007 Mirthubasini ... Appellant/Petitioner/Claimant Vs. 1.Easwaramurthy 2.Shanmugam … Respondents/Respondents 1 & 2 Prayer: This appeal has been filed under Section 100 C.P.C. against the judgment and decree of C.M.A.No.1 of 2007 dated 11.07.2007 on the file of the Court of the Additional District Sessions Judge, Fast Track Court-III, Dharapuram, Erode District reversing the judgment and decree of E.A.No.114 of 2005 in E.P.No.29 of 2005 in O.S.No.3 of 1997 dated 04.08.2006, on the court of the Subordinate Judge at Dharapuram. For Appellant : Mr.A.Sridharan For Respondents R1 : Mr.V.Bharathidesan Mr.B.Dhyaneswaran R2 : Mr.K.B.Iqbal Ahamed JUDGMENT This appeal has been filed against the judgment and decree of C.M.A.No.1 of 2007 dated 11.07.2007 on the file of the Court of the Additional District Sessions Judge, Fast Track Court-III, Dharapuram, Erode District reversing the judgment and decree of E.A.No.114 of 2005 in E.P.No.29 of 2005 in O.S.No.3 of 1997 dated 04.08.2006, on the court of the Subordinate Judge at Dharapuram. 2. The claimant in E.A.No.114 of 2005, in E.P.No.29 of 2005, in O.S.No.3 of 1997 is the Appellant before this Court. She is aggrieved by the order passed by the Lower Appellate Court in C.M.A.No.1 of 2007 dated 11.07.2007 reversing the judgment passed by the Execution Court in E.A.No.114 of 2005 in E.P.No.29 of 2005. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts which are necessary for the purpose of disposing of the Appeal are as follows: For the purpose of convenience, the parties are referred to as per their rankings in the suit i.e., O.S.No.3 of 1997. O.S.No.3 of 1997 was filed by the plaintiff for specific performance and a decree was passed in his favour on 20.12.1999. After passing off the decree, the plaintiff filed an Execution Petition and got the Sale Deed executed with the help of the Execution Court. Thereafter, he filed E.P.No.29 of 2005 for possession. Pending E.P.No.29 of 2005, the claimant as third party filed E.A.No.114 of 2005 under Order 21 Rule 58 read with Section 47 C.P.C. 4. The case of the claimant in E.A.No.114 of 2005 is that, she is a minor daughter of the defendant in the suit, entered into a sale agreement in respect of some items of joint family ancestral property on 31.07.1995 with the plaintiff/decree holder. The claimant was born on 09.01.1996 and thereafter she filed a suit for partition in O.S.No.78 of 1999 and in that suit, she obtained a final decree on 17.09.2001. The plaintiff/decree holder after obtaining an ex-parte decree in the suit for specific performance in O.S.No.3 of 1997, filed the present Execution Petition for getting possession. However, the claimant got possession of same property through the Execution Court by filing an Execution Petition for possession in the suit filed by her in O.S.No.78 of 1997. Therefore, as he has been in possession of the property through a validly passed decree in O.S.No.78 of 1999, the present Execution Petition filed by the plaintiff/decree holder in O.S.No.3 of 1997 for taking possession of the very same property is not maintainable and therefore, the claim petition is to be allowed. 5. This claim petition filed in E.A.No.114 of 2005 was resisted by the plaintiff/decree holder by filing a counter wherein it was stated that he already got the Sale Deed executed through the Execution Court on 31.07.1995 and the property is a self-acquired property of the judgment debtor. Having got the Sale Deed executed, now, he filed the present E.P. i.e., E.P.No.29 of 2005 for taking possession of the same property. To E.P. Proceedings, claim petition has been filed by the wife of the Judgment Debtor. In so far as the decree obtained by the claimant in O.S.No.78 of 1999 is concerned, it was stated that, that was a collusive one and the same would not bind the plaintiff/decree holder as he was not at all a party to the suit. It was further pointed out by the plaintiff/decree holder that a separate suit in O.S.No.118 of 2002 has been filed by the claimant seeking the very same relief which is now asked in E.A.No.114 of 2005 and the said suit was dismissed. Further, the judgment debtor also filed I.P.No.8 of 1997 and that was also dismissed on the ground of collusion and fraud. Hence, the plaintiff/decree holder sought for dismissal of the claim petition filed in E.A.No.114 of 2005. https://hcservices.ecourts.gov.in/hcservices/ 6. The judgment debtor also filed a counter stating that the claim petitioner is his daughter and she is living with her mother separately. He further stated that claimant did not know about the transaction took place between the decree holder and the judgment debtor. As a partition suit was already filed by the claimant in O.S.No.78 of 1999 and possession was taken on the basis of the final decree, the present Execution petition is to be dismissed. 7. Before the Execution Court, the claim petitioner examined PW1 and PW2 and marked Exhibits P1 to P12. The plaintiff/decree holder examined RW1 to RW3 and marked Exhibits R1 to R7. After considering the pleadings and evidence, the Execution court allowed the petition and aggrieved by the same, the plaintiff/decree holder filed CMA.No.1 of 2007 on the file of the Additional Districts and Session Judge (Fast Track Court No.III), Dharapuram. 8. Before the Lower Appellate Court, objections were raised on behalf of the plaintiff/decree holder, stating that as there was no order of attachment passed by the Execution Court, the petition filed by the claim petitioner in E.A.No.114 of 2005 under Order 21 Rule 58 CPC is not at all maintainable. It was further objected to that even under Sec.47 CPC, the claim petition was not maintainable as the contention of the claim petitioner is that, the property was not a self-acquired property and it is a part of the joint family property. 9. If that being so, it was contended on behalf of the plaintiff/decree holder that the application filed in E.A.No.114 of 2005 is not maintainable at all. 10. The Lower Appellate Court sustained both the objections raised by the plaintiff/decree holder and accordingly, held that EA.No.114 of 2005 filed under Order 21 Rule 58 and Sec 47 CPC is not maintainable. On merits also, the Lower Appellate Court after evaluating the Exhibits P6, P7 and P9, held that these exhibits did not prove the case of the claim petitioner that the property is a joint family property and therefore, the claim petitioner has not proved her case on merits also. Thus, the Lower Appellate Court allowed the Appeal filed by the plaintiff/decree holder on 11.07.2007 and aggrieved by the same, the claim petitioner filed the second appeal before this Court. 11. Heard the learned counsel appearing for the appellant/claim petitioner, the learned counsel appearing for the first plaintiff/decree holder and the learned counsel appearing for the second respondent/defendant/Judgment Debtor. I have also gone through the entire documents made available on record. https://hcservices.ecourts.gov.in/hcservices/ 12. This C.M.S.A. was admitted by this Court on 22.11.2007 and at the time of admission, the following substantial questions of law were framed by this Court: 1.When the appellant has filed claim petition filed in the E.P. Court, praying the release of the suit property in view of E.P.No.29 of 2005 filed by 1st respondent herein has already been attached, will not the provision of Order XXI Rule 58 of CPC will apply? 2.Is the lower appellate court correct in dismissing petition filed under Section 47 of CPC? 3.Is the lower appellate court correct in arriving at conclusion that it is the self acquired property of the 2nd respondent herein inspite of the existence of Ex.P6 & P7? 4.When the appellant has already taken possession of half of the suit property as per E.P.No.200 of 2003, is the lower appellate Court correct in holding that the first respondent is entitled to take possession of the entire suit property? 5.When there is a building, put up by the appellant herein over the suit property, whether the order of the lower appellate court in making feasibility of first respondent to take possession of the vacant land alone? 13. The above substantial questions of law could be re-arranged and re-grouped as follows: 1.Whether the Lower Appellate Court has correctly held that E.A.No.114 of 2005 filed under Order 21 Rule 58 read with Section 47 CPC is not maintainable? 2.Whether the findings given by the Lower Appellate Court on the basis of Ex.P6, P7 and P9 that these exhibits did not prove the case of the Appellant that the property is a joint family property are perverse or not? 3.When the appellant herself has taken possession by filing an Execution Petition and put up a building on the property, whether the plaintiff/decree holder is entitled to take possession of the vacant land alone. Substantial Question of law No.1 14. Objections were raised before the Lower Appellate Court that Order 21 Rule 58 r/w. Section 47 CPC application is not maintainable. The Lower Appellate Court accepted the contention that the petition filed under Order 21 Rule 58 read with Section 47 CPC is not maintainable on the ground that: a) no property was attached so as to be released; and https://hcservices.ecourts.gov.in/hcservices/ b) the question of self-acquired property and joint family property could not be attached under Section 47 proceedings. 15. To decide this issue, it is useful to refer to Order 21 Rule 58 which reads as follows: 58. Adjudication of claims to, or objections to attachment of property- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions therein contained: Provided that no such claim or objection shall be entertained- (a) where, before the claim is preferred or objection is made, the property attached has already been sold; or (b) where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit. (3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,- (a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit. (4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing https://hcservices.ecourts.gov.in/hcservices/ to entertain the claims or objection shall be conclusive. 16. A perusal of the above Rule will make it very clear that under Order 21 Rule 58, if any claim is preferred to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions contained thereon. It is also made clear in the proviso that if the property attached has already been sold or if the Court considers that the claim is designedly or unnecessarily delayed, then, no such claim shall be entertained by the Court. 17. In the present case, it was not in dispute that the property was not attached in execution of the decree and in fact, the decree itself was for the specific performance of the sale agreement. It is also not in dispute that the Sale Deed was also executed in favour of the plaintiff/decree holder in the previous Execution proceedings. Thus, even before filing the claim petition under Order 21 Rule 58, the Sale Deed was already executed by the Execution Court in favour of the plaintiff/decree holder. It is, therefore, no property was attached by the Execution Court and the Sale Deed itself was arleady executed by the Execution Court in favour of the plaintiff/decree holder. In such circumstances, the Claim Petition filed under Order 21 Rule 58, as if there was an attachment and that was to be released is not at all maintainable and therefore, I concur with the finding of the Lower Appellate Court that the claim petition filed under Order 21 Rule 58 is not maintainable. 18. Now, let me consider the maintainability of the Execution Application under Section 47 CPC. To decide this question, Section 47 can be referred to usefully which reads as follows: 47.Questions to be determined by the Court executing decree- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. [Explanation I.—For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.—(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree https://hcservices.ecourts.gov.in/hcservices/ shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.] 19. A perusal of Section 47 will make it very clear that all questions arising between the parties to the suit, in which, the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. 20. Admittedly, the claim petition has been filed by the daughter of the Judgment Debtor and therefore, she was not a party to the suit nor she claimed the property as the representative of the Judgment Debtor. 21. In 2006 (3) LW 827 (St.Mark's Educational Trust by its Managing Trustee, Prince Babu Rajendran, 143, Radha Nagar Main Road, Chromepet, Chennai vs. S.Ashok Kumar), I had an occasion to go through the scope of Section 47 and in that decision, it was held as follows: "6. In the above judgment, the Hon'ble Supreme Court has elaborately dealt with the power of the executing court under Sec.47 of C.P.C., and held as follows:- "23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of the court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate court is not only entitled but obliged under law to go into the questions of facts as well, like the trial court, apart from questions of law. Powers of the second appellate court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2.1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act, have been further narrowed down as now in such an appeal only a substantial question of law can be considered. The powers of this Court under Article 136 of the Constitution of India, should not be https://hcservices.ecourts.gov.in/hcservices/ exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this Court. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and are much wider as there the court can go into the correctness, legality or propriety of the order and regularity of proceeding of the inferior court. It does not mean that in each and every case the revisional court is obliged to consider questions of facts as well like a first appellate court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed. 24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the Governing Body of the College which was the defendant without seeking leave of the court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceedings of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceedings or https://hcservices.ecourts.gov.in/hcservices/ colluded with the adversary or any other ground permissible under law." 7. From the above judgment, it is very clear that the powers of the court under Sec.47 are much narrower than its powers of the appeal, revision or review. The executing court can allow objections under Sec.47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was obtained passed in ignorance of such a provision of law or the law as promulgated making the decree in- executable after its passing. The validity or otherwise of a decree may be challenged by getting a properly instituted suit or taking any other remedy under law. The executing court cannot go behind the decree except when the decree is a nullity or is without jurisdiction." 22. From the above judgment, it is very clear that the powers of the Execution Court under Section 47 are much narrower and the court can allow objection under Section 47 if it is found that the decree is void abinitio apart from the ground that the decree is not capable of execution under law either because the same was obtained/passed in ignorance of a provision of law or the law as promulgated making the decree inexecutable after its passing. Therefore, the scope of Section 47 is very narrow and the same cannot be widened by the claim petitioner to decide the issue namely whether the property in dispute is a self-acquired property or a joint family property. 23. In AIR 1954 MAD 675 (M.S.Kalyanasundaram Ayyar vs. M.S.Subramanya Ayyar and others), a Division Bench of this Court held as follows: "23. Mr. Ramaswami Aiyangar had to concede that the first defendant could represent his sons, the plaintiff and defendants 2 to 4, in O. S. No. 302 of 1936 and any decree obtained against the first defendant would be binding on the sons; because, as the head and 'kartha' of a joint family, apart from his position as the father, the first defendant had full power to represent the joint family. A decree obtained against the first defendant 'bona fide' would be biniding on all the other members of the family unless the other members can later on show that there was fraud, collusion, or negligence on the part of the first defendant in the conduct of the suit. This position is now firmly established after the Full Bench decision in 'Venkatanarayana v. Somaraju', AIR 1937 Mad 610 (X) and the Bench decision in -- 'Krishna-murti v. Chidambaram', AIR 1946 Mad 243 (Y). One of us had to https://hcservices.ecourts.gov.in/hcservices/ consider the effect of such representation in 'Papanasam Chettiar v. Muthayya Chettiar, AIR 1949 Mad 625 (Z), where it has been held that the proposition that a family is bound by a decree properly passed against the manager, either in respect of family property, or for a debt contracted by the manager, is well-settled, and where the suit related to joint family property, or a debt payable by the joint family, and the person sued is the manager, he need not be described as such in the plaint, though it may be advisable to do so. The observations in 'AIR 1937 Mad 610 (X)' had been relied upon there. Such being the case, if the first defendant could represent his sons at the time the decree was passed, how he loses his representative capacity when the sale takes place is difficult to understand. But Mr. Ramaswami Iyengar contends that Order 34, Rule 14, Civil P. C. does not contain an imperative prohibition against the obtaining of a simple money decree for payment of money in satisfaction of a claim arising under the mortgage, but that what is prohibited is the attachment and sale of the equity of redemption pursuant to such a decree. The representative capacity of a father or manager in a joint Hindu family does not extend to a case where the act done against the family contravenes a statutory prohibition. Under those circumstances, one has to see whether, even though the father can represent under ordinary conditions, his right to represent is taken away when something prohibited by law is done. We are unable to say that such a distinction exists. A sale to which the father may be a party in a representative capacity may be subject to illegalities and irregularities referred to in Order 21, Civil P. C., and such a