IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED:11.03.2011 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM CRP (NPD) No.401 of 2006 & C.M.P.No.3089 of 2006 Rajamanickam ... Petitioner/Plaintiff Vs. 1.Balasubramanian 2.Selvamani ... Respondents/1 & 2 of defendants Prayer: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the fair and decreetal order dated 20.09.2005 made in E.A.No.69 of 2001 in E.P.No.14 of 2001 in O.S.No.110 of 1997 on the file of the District Munsif cum Judicial Magistrate Court Nannilam. Nagapattinam For Petitioner : Mr.S.Sounthar For Respondents : Mr.M.Thamizhavel O R D E R This Revision has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as "CPC") against the fair and decreetal order dated 20.09.2005 in E.A.No.69 of 2001 in E.P.No.14 of 2001 in O.S.No.110 of 1997 on the file of the District Munsif cum Judicial Magistrate Court, Nannilam. 2. The plaintiff is the petitioner herein. The petitioner filed a suit in O.S.No.110 of 1997, for partition, claiming 1/3rd share in the suit property. The respondents herein are the defendants 1 and 2 in the suit. Despite service of suit summons, the defendants failed to appear before the trial Court they were set exparte and an exparte preliminary decree was passed on 13.10.1997. Thereupon, the petitioner filed I.A.No.54 of 1998, to pass a final decree. In the mean time, the second respondent filed I.A.No.532 of 1998, to set aside the exparte preliminary decree dated 13.10.1997, and the said application was allowed. Subsequently, the second respondent/second defendant filed a written statement stating that the property comprised in survey No.55/1 is also a joint family property available for partition and the same have left out in the plaint schedule. Accordingly, the petitioner/plaintiff filed https://hcservices.ecourts.gov.in/hcservices/ I.A.No.546 of 1999, under Order 6, Rule 17 CPC, to amend the prayer in plaint to include the survey No.55/1. This application was allowed by the trial Court and thereafter, a fresh preliminary decree was passed. Subsequently, the petitioner/plaintiff filed I.A.No.3 of 2000 for passing a final decree and in which, notice was served on the respondents. The first respondent herein, who was also the first respondent in I.A.No.3 of 2000, filed a counter statement inter alia contending that no notice was served on him in I.A.No.456 of 1999, which was filed to amend the prayer in plaint and in the absence of any such notice, the preliminary decree passed by the Court itself is illegal and consequently, no final decree can be passed. The trial Court considered the contention raised by the first respondent, and rejected the same and allowed the final decree application, by order dated 10.11.2000. As against the said order, the first respondent did not initiate further proceedings. Thereupon, the petitioner filed E.P.No.14 of 2001 for delivery of 1/3rd share in the suit schedule property. In the execution petition, the first respondent herein filed E.A.No.69 of 2001 under Section 47 CPC. In the said application filed under Section 47 CPC, it was stated that no notice was served on the first respondent in I.A.No.456 of 1999, which was filed for amendment of the prayer in plaint and the suit for partial partition is bad in law and consequently, the final decree passed by the trial Court cannot be executed and prayed for rejection of the execution petition. This application was resisted by the petitioner herein by filing a counter. The Executing Court, by order dated 20.09.2005, allowed the application filed under Section 47 CPC and aggrieved by such order, the petitioner has filed the present revision petition. 3. The learned counsel appearing for the petitioner would submit that the objection raised by the first respondent in E.A.No.69 of 2001 filed under Section 47 CPC was raised by him in the final decree application in I.A.No.3 of 2000, and the contentions were rejected by the trial Court and an order was passed on 10.11.2000. The first respondent having not challenged the said order, allowed the same to attain finality, is estopped from raising the same contention once over again in the application filed under Section 47 CPC. Further, it was contended that the first respondent cannot raise the plea of partial partition for the first time in a petition under Section 47 CPC, when he was set exparte in the suit and no steps were taken by the first respondent under Order 9, Rule 13 CPC. Further, if non-service of notice/summons is allowed to be raised under Section 47 CPC, the provision of Order 9, Rule 13 will become a dead letter. Therefore, it is contended that the application under Section 47 CPC is barred by res judicata under Order 2, Rule 2 CPC and ought to have rejected by the Executing Court. Further, the learned counsel would submit that the first respondent herein filed a separate suit in O.S.No.103 of 2001, before the same Court i.e., District Munsif Court, Nannilam, claiming partition in which, the https://hcservices.ecourts.gov.in/hcservices/ same property was also mentioned in the schedule and the trial Court dismissed the said suit by Judgment and decree dated 11.10.2006, stating that already the properties comprised in survey No.55/1, has been partitioned by a valid Judgment and decree in O.S.No.110 of 1997 and as the decree has become final, question of granting relief to the first respondent in a separate suit in O.S.No.103 of 2001 cannot be granted. Further, the learned counsel would submit that even assuming that the first respondent was not served any notice in the petition filed for amendment of the plaint in I.A.No.456 of 1999, it is only a procedural irregularity and it will not make the decree as a void decree. In support of the said contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in (2004) 1 SCC 287, [Rafique Bibi vs. Sayed Waliuddin and others]. Further, the learned counsel would submit that in an application filed under Section 47 CPC, the first respondent cannot question the validity of the decree and the Executing Court cannot go into such question. In support of the said contention, the learned counsel placed reliance on the decision of this Court in AIR 1987 Madras 124 [Ganapathi and another vs. Balasubramania Gounder]. That apart, learned counsel placed reliance on the decision of this Court in 1992 II MLJ 325 [A.V.Hanifa vs. Salima Bhanu], for the proposition that the expression "all questions" in Section 47 means only all questions, which were not raised in the suit and decided by the trial Court. The first respondent having raised the same question in the final decree application by way of a counter, cannot re-agitate the matter and as it is barred by res judicata. On the above grounds, the learned counsel appearing for the petitioner would submit that the order passed by the Executing Court calls for interference. 4. The learned counsel appearing for the first respondent submitted that the litigation itself is a collusive litigation between the petitioner and the second respondent herein and the first respondent has clearly stated about the same in the counter affidavit filed in I.A.No.3 of 2000, the final decree application and the Executing Court failed to properly consider the aspect and when the plaint was amended to include the survey No.55/1 as the suit schedule property, no notice was issued to the first respondent and even after the plaint is amended, no suit summons were served on the first respondent with the amended copy of the plaint and the petitioner did not include all the properties and therefore, the suit itself bad for partial partition. Further, the learned counsel appearing for the respondents by placing reliance on the decision of this Court in 1995 1 L.W. 141 [Annapoorni vs. Janaki] and 1995 1 CTC 224[Mahaboova Beevi v. Nataraja Chettiar], submitted that the Executing Court has sufficient power under Section 47 to examine the decree and the Executing Court in the instant case has correctly followed the said legal principle and allowed the application under Section 47 CPC and the order passed by the Executing Court is perfectly legal and valid and calls for no interference. https://hcservices.ecourts.gov.in/hcservices/ 5. Heard the learned counsels appearing for the parties and perused the materials available on record. 6. The short question, which falls for consideration in the present revision is as to whether the Executing Court was justified in entertaining the application filed by the first respondent herein, who was the first defendant in the suit and holding that the decree is in-executable. The facts of the case have been set out in the preceding paragraphs. Admittedly, both the defendants in the suit, despite receipt of suit summons failed to appear and they were set as exparte. Subsequently, an exparte preliminary decree for partition was passed on 13.09.1999. It is not known as to why the first respondent herein did not take any steps to set aside the exparte preliminary decree. However, the second respondent filed an application to set aside the exparte preliminary decree and such application was allowed. Thereafter, the second respondent filed a written statement stating that survey No.55/1 has been left out in the plaint schedule and the same has also to be included and it is liable for partition. After the written statement was filed by the second respondent, the petitioner/plaintiff filed I.A.No.456 of 1999, to amend the prayer in plaint to include survey No.55/1, as one of the items in the suit schedule. It is the contention of the first respondent that no notice was served in I.A.No.456 of 1999 and the same was allowed by the trial Court and the plaint was directed to be amended. Further, it is stated that even after the amendment, the copy of the amended plaint was not served on the first respondent. Yet, the Court proceeded to pass a preliminary decree based on the amended plaint. In the final decree application in I.A.No.3 of 2000, notice has been served on the first respondent. In the said application, apart from other contentions, the petitioner has raised the contention stating that failure to issue notice in I.A.No.456 of 1999, is fatal and accordingly, the preliminary decree itself is illegal and consequently, no final decree can be passed. The trial Court in I.A.No.3 of 2000, considered the objections raised by the first respondent and passed an order dated 10.11.2000. While dealing with the objections raised by the first respondent in the counter in I.A.No.3 of 2000, the Executing Court held as follows:- 4/,e;j kDtpy; kDjhuh; jug;gpy; rhl;rpa';fs; vJt[k; tprhhpf;fg;gltpy;iy/ vjph;kDjhuh; jug;gpy; Kjy; vjph;kDjhuh; v.k.rh/1 Mf tprhhpf;fg;gl;lhh;/ 28/04/1999y;. uh$khzpf;fk; fhty;Jiwf;Fk;. v/k/rh/1f;Fk; bfhLj;j mwptpg;gpd; efy; v/k/rh/M/1 Mf jhf;fy; bra;ag;gl;Ls;sJ/ mjw;F bfhLj;j gjpy; v/k/rh/M/2 MFk;/ mij uh$khzpf;fk; fhty;Jiwa[k; bgw;Wf; bfhz;ljw;fhd m";ry; xg;g[jy; ml;ilfs; v/k/rh/M/5 tiu jhf;fy; bra;ag;gl;Ls;sJ/ v/k/rh/1 jd; Kjy; tprhuizapy; kDtpy; Twp cs;stw;iwna jpUk;gf; Twp cs;shh;/ mth; jd;Dila Fwf;F tprhuizapy; 15/10/99 md;W Vw;gl;l Kjy;epiyaj; jPh;g;ghiz eltof;iffspy; mth; fye;J bfhs;stpy;iybad;W xg;g[f; bfhz;Ls;shh;/ mij khw;wp mikf;f ,d;W tiu eltof;if vLf;ftpy;iybad;Wk; xg;g[f; bfhz;Ls;shh;/ 11/4/98 md;W mtUf;F xU gjpt [ jghy; K:yk; te;j mwptpg;ig th';fpf; bfhs;shky; kWj;Jtpl;ljhft[k; ,/ep/tp/54-98y; https://hcservices.ecourts.gov.in/hcservices/ ,Wjpepiyj; jPh;g;ghizf;F rk;kd; mDg;gg;gl;L mij kWj;Jtpl;ljhft[k; xg;g[f; bfhz;Ls;shh;/ 15/10/99 md;W Vw;gl;l Kjy;epiyj; jPh;g;ghiz nghpy; mth; nky;KiwaPL bra;atpy;iybad;Wk;. vk/rh/M/2 njjpapy; ,Ue;nj Kjy;epiyj; jPh;g;ghizia khw;wpikf;f mth; eltof;if vLf;ftpy;iy vd;Wk; xg;g[f; bfhz;Ls;shh;/ nkYk; 2tJ ,d brhj;J mtUf;F xJf;fg;gl;lJ vd;gjw;F ve;j Mjhu';fSk; jhd; jhf;fy; bra;atpy;iy vd;Wk;. mth; rhl;rpakspj;Js;shh;/ mtUila rhl;rpaj;jpiz ghprPypf;Fk; nghJ. Kjy;epiyj; jPh;g;ghiz eltof;ifapy; mth; M$uhfhky; ,Ue;Jtpl;L mtUf;F vjpuhf xUjiygl;rkhf Kot [ bra;ag;gl;Ls;sJ vd;gJ g[yg;gLfpwJ/ mijg; gw;wp bjhpe;j nghJk; Kjy; epiyj; jPh;g;ghizapy; Vw;gl;Ls;s cj;juit khw;wpikf;f ,Jtij mth; ve;j eltof;ifa[k; vLf;ftpy;iybad;gJ g[yg;gLfpwJ/ vdnt Kjy; epiyj; jPh;g;ghiz eltof;if Kotile;Js;s epiyapy;. ,Wjpepiyj; jPh;g;ghizf;fhf eltof;if vLf;fg;gl;Ls;sjhy;. jw;nghJ Kjy; vjph;kDjhuh; ,jpy; g[jpajhf ve;j fl;rpiaa[k; brhy;tjw;F chpikaw;wth; Mdhh;/ nkYk; Kiwahf mwptpg;g[ mDg;gg;gl;L mijg; bgw;Wf; bfhs;shky; jpUg;gptpl;ljhf Kjy; vjph;kDjhuh; xg;g[f; bfhz;l epiyapy;. Kdtpy; fz;Ls;s fhuz';fSf;fhf ,e;j gpur;rpidfs; ,uz;Lk; kDjhuUf;F rhjfkhf jPh;khdk; bra;ag;gl;L. ,e;j kD bryt[j; bjhifapd;wp mDkjpf;fg;gLfpwJ/ 7. The above order passed by the Executing Court has not been questioned by the first respondent and he allowed the same to attain finality. Thereupon, the petitioner filed execution petition in E.P.No.14 of 2001, in which, an application under Section 47 was filed by the first respondent in E.A.No.69 of 2001. The copy of the petition has been filed in the typed set of papers and it is seen that the objections, which were raised by the first respondent in his counter in I.A.No.3 of 2000, (final decree application) has been raised once over again in E.A.No.69 of 2001 (Application under Section 47 CPC). The Executing Court adjudicated the matter and came to a conclusion that because the first respondent was not issued any notice in I.A.No.456 of 1999, which was the application filed for amendment of the plaint, the decree becomes in-executable and that the Court has exercised the powers conferred under Section 47 CPC stating that the Court could go behind the decree and find out as to whether it is legally a valid decree and Court having been satisfied that the decree is illegal for non-service of notice in the application filed to amend the plaint, the same is in-executable. 8. This Court is of the view that the conclusion arrived at by the trial Court is not tenable. Such conclusion is supported by the following reasons. (i) the first respondent having failed to set aside the exparte decree passed in the suit by resorting to the procedure under Order 9, Rule 9 CPC cannot be now permitted to say that the decree is a nullity that too by way of the application under Section 47 CPC in the course of executing the decree. (ii) The first respondent was aware of the exparte decree as on 23.06.2000, and no steps were https://hcservices.ecourts.gov.in/hcservices/ taken by the first respondent to set aside such decree and allowed the same to attain a finality. (iii)Though, it is stated that no notice was served on the first respondent in amendment application in I.A.No.456 of 1999, yet the first respondent raised the very same objection as raised in the application filed under Section 47 CPC by filing a counter in I.A.No.3 of 2000. These objections were considered by the trial Court and were rejected. The reasons for rejection are as extracted above. Even at that stage, it was well open to the first respondent to question such an order. However, the first respondent allowed the order passed in the final decree application, I.A.No.3 of 2000, to attain a finality. Thereafter, the first respondent has resorted to seek remedy under Section 47 CPC. (iv) From the conduct of the first respondent as stated above, it has to be necessarily held that the first respondent is barred by the principles of the res judicata by raising such plea again in the Section 47 application. 9. As held by this Court in the decision referred to by the learned counsel appearing for the petitioner in Ganapathi and another, referred supra, the Executing Court must execute the decree as it stands and it cannot go into the correctness or validity of the decree except when the decree is a nullity. Therefore, the question arises therefrom is whether the decree in the present case is a nullity. The Hon'ble Supreme Court in Rafique Bibi, referred supra, brought out the distinction between an illegal decree and a void decree and observed as hereunder:- "8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings." Thus as per the law laid down by the Hon' ble Supreme Court, referred supra, if a decree is not in accordance with the procedural law, it has to be construed as a decree suffering from irregularity in procedure and cannot be termed to be in-executable by the Executing Court. 10. As noticed above, the complaint of the first respondent itself, is that the trial Court committed a procedural irregularity https://hcservices.ecourts.gov.in/hcservices/ in not issuing notice in the application filed for amendment of the plaint and serving the amended copy of the plaint. Therefore, the decree in the instant case could be construed only as a decree passed without adhering to the procedure and such decree cannot be termed as in-executable. Therefore, the Executing Court committed a serious error in holding that the decree is in-executable. 11. The learned counsel appearing for the first respondent by placing reliance on the decision of this Court in Mahaboova Beevi, referred supra, contended that the Court can go beyond the decree and hold an enquiry and this was done by the Executing Court in the present case. In the case of Mahaboova Beevi, the objection before the Executing Court was that in the exparte decree, an extent of 88 cents was not found within the four boundaries given to the suit property. Thus, while analyzing the aspect in order to establish the identity of the property, this Court held that the Court can go beyond the decree and hold an enquiry to find out the true effect of the decree, so as to find out whether, it is 88 cents or 88 kuzhis before ordering delivery. However, the facts of the present case are entirely different and the decision referred supra is of no assistance to the case of the first respondent. In the case of Annapoorni, referred to by the learned counsel appearing for the first respondent this Court (Justice M.Srinivasan, J.) held as follows:- 11. When this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of this Court. It is only for that reason, I am exercising my powers under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India." 12. In the above referred Judgment, this Court exercised jurisdiction under Article 227 of the Constitution of India, since the Court passed a decree in disregard to provision of law without applying the mind to the provision and as it causes great hardship. https://hcservices.ecourts.gov.in/hcservices/ The Judgment rendered in the case of Annapoorni, referred supra, cannot be applied to the facts and circumstances of the present case, as there is no error of law pointed out by the first respondent. In any event, the first respondent having raised the same objection in the final decree proceedings, which was rejected by order dated 10.11.2000, cannot be allowed to re-agitate the same, in the execution petition by invoking Section 47 CPC. 13. In the case of A.V.Hanifa, referred supra, while considering the expression "all questions" occurring in Section 47 CPC, this Court (Justice M.Srinivasan,J) held as follows:- "9.... When the Section refers to all questions it only means all questions which were not raised in the suit and decided by the trial Court. If a question was raised before the trial Court at the stage of trial and decided by the trial court it is not open to the parties to raise it again at the stage of execution. Similarly, if a question ought to have been raised by a party before the trial court at the stage of trial and if he omits to raise it, even then he cannot raise it under Section 47 before the executing Court." 14. As noticed in the earlier part of this order, the questions raised under Section 47 application were raised by the first respondent in the earlier proceedings and the orders passed thereon having become final, the first respondent cannot permit to raise the same once over again. 15. The learned counsel appearing for the petitioner brought to the notice of this Court, about the Judgment and decree passed in O.S.No.103 of 2001, dated 11.10.2006. The said suit was filed by the first respondent herein for partition and the petitioner and the second respondent herein were the defendants in the said suit. The first respondent sought for partition of the very same property, which is subject matter of the present Revision. In the said suit one of the issue framed by the Court was whether the suit is barred by res judicata. While answering the said question, the trial Court therein held that in the earlier suit, i.e. O.S.No.110/97, in which the present revision arises, it has been already decided that the first respondent is entitled to 1/3rd share and therefore, the first respondent is estopped from filing a fresh suit and the suit is barred by res judicata. Accordingly, the suit came to be dismissed. Therefore, the first respondent has failed in all his attempts to make the decree passed in O.S.No.110 of 1997, unworkable and it is to be held the attempt made by the first respondent is to prevent the petitioner from enjoying the fruits of the decree by filing such a vexatious petition. https://hcservices.ecourts.gov.in/hcservices/ 16. For all the above reasons, this Court is of the firm view that the order passed by the Executing Court is not sustainable in law and calls for interference. 17. In the result, the Civil Revision petition is allowed and the order passed by the Executing Court in E.A.No.69 of 2001 in E.P.No.14 of 2001 in O.S.No.110 of 1997 on the file of the District Munsif cum Judicial Magistrate Court Nannilam is set aside. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar pbn To 1 The District Munsif cum Judicial Magistrate Court Nannilam, Nagapattinam 2 The Section Officer, VR Section, High Court, Madras +1 CC to Mr.S. Sounthar, Advocate Sr.18173 +1 CC to Mr.M.Thamizhavel Advocate Sr.17768 Pre-Delivery Order in CRP (NPD) No.401 of 2006 MRD (CO) BMD 29/03/2011 https://hcservices.ecourts.gov.in/hcservices/