Chinna Karuppathal
v.
A.D. Sundara Bai & Others
(High Court Of Judicature At Madras)
Civil Revision Petition No. 3078 Of 2009, & M.P. No. 1 Of 2009 | 16-11-2009
(Prayer: This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, praying to set aside the order dated 28.07.2009 passed in E.A.No.255 of 2009 in E.A.No.139 of 1962 in E.P.No.134 of 1957 in O.S.No.226 of 1946 on the file of II Additional Subordinate Judge, Coimbatore.)
The revision petition/petitioner/second petitioner has projected this civil revision petition as against the order dated 28.07.2009 made in E.A.No.255 of 2009 in E.A.No.139 of 1962 in E.P.No.134 of 1957 in O.S.No.226 of 1946 passed by the II Additional Subordinate Judge, Coimbatore, in dismissing the application filed by the revision petitioner under Section 151 of Civil Procedure Code praying for an enquiry in E.A.No.139 of 1962 filed under Section 47 of Civil Procedure Code.
2. The Executing Court while passing orders in E.A.No.255/2009 has inter alia opined that, "... it is not necessary to take up enquiry in E.A.No.139 of 1962 as the Apex Court itself has considered the pendancy of E.A.No.139 of 1962 and passed a final order on merits and this has no power to take up the enquiry afresh in E.A.No.139 of 1962 that in view of the final order passed by the Honble Supreme Court of India, and I.A.Nos.19-21 of 2008 in Civil Application Nos.5267-5269 have been filed by the petitioners seeking clarifications setting out that E.A.No.139 of 1962 under Section 47 of Civil Procedure Code is pending before this Court and thereby sought for a direction given by Honble Supreme Court of India, not to confirm the sale and to issue sale certificate in favour of the auction purchasers set out in the order dated 24.10.2008 shall be deleted. However, the Honble Supreme Court of India, had dismissed the said clarification by an order dated 23.02.2009 etc., and since the highest Court of Law the Honble Supreme Court of India, has passed the final order, that the present Execution Application has no merits and resultantly, dismissed the application without costs."
3. The core of contention put forward by the learned counsel for the revision petitioner is that the order of the Executing Court, in dismissing the E.A.No.255 of 2009 is materially an irregular one and also contrary to law and the Executing Court, as a matter of fact has not appreciated of the simple fact that what was challenged before the Honble Supreme Court of India is against the order of the Honble High Court, Madras dated 26.02.1998 in C.R.P.Nos.3162 to 3164 of 1992 which have been filed against E.A.No.782 of 1989 in E.A.Nos.1612 and 1613 of 1987 respectively and not against the application filed under Section 47 of Civil Procedure Code, and the Honble Supreme Court of India has merely dismissed the application filed for clarification without any discussion or expressing any opinion on the application filed under Section 47 of Civil Procedure Code and further, that the order of the Honble Supreme Court of India dated 23.02.2009 is not on merits, and moreover, while considering the applicability of Tamil Nadu Agriculturist Debt Act and Section 23 A of the said Act, the Honble Supreme Court of India have held that the persons are not entitled for the benefit of Section 23 A of the Act and in short there has been no reference in the applicability of Section 47 of Civil Procedure Code in the order passed by the Honble Supreme Court and as such the Execution Court ought to have held the application under Section 47 of Civil Procedure Code is proper and maintainable in law and the trial Court has failed to see that earlier application under Section 47 of Civil Procedure Code have not been heard and it ought to have taken up the application E.a.No139 of 1962 filed under Section 47 of Civil Procedure Code and all the more the Executing Court has committed an error in holding that the order of the Honble Supreme Court is final on the whole aspect and since, the Executing Court has not appreciated and adverted to the factual aspects of the matter in issue the order passed by it in E.A.No.255 of 2009 suffers from material irregularity coupled with patent illegality which has resulted in the dismissal of the Execution Petition and therefore, prays for allowing the civil revision petition in furtherance of substantial cause of justice.
4. In the counter filed by Mr. P. Kumarasamy who is the legal representative of 13th Respondent, Ponnusamy Gounder it is inter alia mentioned that the legal representatives of his father in E.A.Nos.1612 and 1613 of 1987 and E.A.No.782 of 1988 have already been impleaded and the same has been recognised in Civil Revision Petition No.3162 of 1992 on the file of this Court and Civil Appeal Nos.5267-69 of 2002 on the file of Honble Supreme Court of India and that his father Ponnusamy expired on 27.01.1973 leaving behind him, two brothers Velusamy and Jambulingam and two sisters Karunambigai and Rukmini, and further his brother Velusamy expired on 13.07.2005 leaving behind his wife Parvathy and children Vivekanandan and Geetha and likewise his sister Rukmini expired on 13.12.1996 leaving behind her husband Sivsamy Gounder and her children Chandrakala, Gnanaprakash, Jagadambal and Nathan (alias) Jaganathan and as a matter of fact all of us have been arrayed as Respondent Nos.9 to 21 in the proceedings pending before the Honble Supreme Court in C.A.No.5267 to 5269 of 2002, and though they have not arrayed as parties in this civil revision petition this counter affidavit has been filed as a caveator as legal representatives of the deceased 13th respondent and added further, the revision petitioner alone has moved E.A.No.255 of 2009 praying for an enquiry in E.A.No.139 of 1962 filed under Section 47 of Civil Procedure Code and though the legal representatives of 13th respondent herein have filed counter in the said E.A.No.255 of 2009 and in the order passed by the Executing Court in E.A.No.139 of 1962 the Executing Court has questioned the locus standi of the petitioner to project an application under Section 47 of Civil Procedure Code and the response of the revision petitioner has been that he is the representative in interest by means of a settlement deed and also that the settlement deed has been brought into existence during the pendency of the Execution proceedings and since the petitioner is not coming within the four parameters of Section 47 of Civil Procedure Code, he is not entitled to maintain the said application and also that the Honble Supreme Court has refused to consider the demand of petitioner to keep in abeyance the confirmation of sale till the disposal of the Section 47 application and therefore prays for dismissal of the civil revision petition.
5. The learned counsel for Respondents Nos.11 and 12, legal representatives submits before this Court that he adopts the contentions put forward by the learned counsel for the legal representatives of 13th respondent in all aspects and goes on to add that legal representatives of 12th respondent have been added before the Honble Supreme Court as necessary parties but the revision petitioner has not chosen to show them as one of the necessary parties before the present civil revision petition before this Court and contends that the Executing Court has considered over all assesment of the facts and circumstances of the case in a cumulative and in an integral fashion and has passed the recent order which may not be interfered by this Court sitting in revision.
6. This Court has heard the arguments of the learned counsel appearing for the parties and noticed their contentions. This Court, at this stage, pertinently recalls the judgment of the Honble Supreme Court in C.A.Nos.5267-5269 of 2002, between Chinnakarupathal & Ors. and A.D. Sundarabai (dead by Lrs) & Ors. dated 24.10.2008 whereby and whereunder the Honble Supreme Court has among other things held as follows;
"The fact that agricultural lands were sold in an auction and that the owners of such lands were agriculturists, are not by themselves sufficient to invoke the exercise of power under Section 23A of the Act. The Court can set aside a sale of immovable property under the said section only if the Court is satisfied that the applicant is a person entitled to the benefits of the Act.
As noticed above, the only benefit claimed by the appellants under the Act was scaling down of the debt and determination of the scaled down amount. We have already held that the said application was not maintainable. The appellants have not been able to demonstrate how they are entitled to any of the benefits under the said Act. A perusal of the Act shows that the reliefs that can be granted under the Act are: scaling down of debts and rates of interest; relief in regard to the usufructuary mortgages; consessions in regard to interest payable by agriculturists on loans; conditional discharge of arrears of rent due to land holders and scaling down of interest on arrears of rent. But none of these are applicable to the recovery by way of restitution, by enforcing the security. Scaling down of the debit is permissible only where the amount paid or payable by way of principal and interest is more than twice the amount of the principal. That does not apply in this case. This is not a case of usufructuary mortgage. Nor is any interest payable on any loan. Nor is the claim for any rent payable. Therefore, we are not satisfied that appellants, are persons entitled to the benefits of the Act. In the absence of such satisfaction, the question of setting aside the auction sale under Section 23A of the Act does not arise. The rejection of the three applications is proper. As a consequence, the auction sales will have to be confirmed in favour of the auction-purchasers."
7. Thereafter, a clarification petition has been filed by the revision petitioner before the Honble Supreme Court in I.A.Nos.19-21 in C.A.Nos.5267-5269 of 2002 and the same has been dismissed on 23.02.2009.
8. It is to be noted that an application filed by the third party under Section 47 of Civil Procedure Code is per se not maintainable as per decision of this Court Rajammal v. A.T. Krishnaswami Mudaliar (Died) and Others, AIR 1972 Madras 359 (V 59 C 121) wherein it is held that, even after the amendment to the Civil Procedure Code after Act 104 of 1976 and thereafter as per Act 22 of 2002 the position of law in regard to Section 47 of Civil Procedure Code remains the same and in short if now the application filed by the third party under Section 47 of Civil Procedure Code is not per se maintainable in law.
9. Even though a fervent endeavuor have been made on the part of the revision petitioner to project a case before this Court by put forwarding a plea that the Honble Supreme Court has been has been considering only the applicability of Tamil Nadu Agriculturist Debt Act and Section 23A of the said Act etc., this Court opines that the Honble Supreme Court of India has earlier disposed of the C.A.Nos.5267-5269 of 2002 and later clarification I.A.Nos.19-21 filed have also been dismissed on 23.02.2009, and therefore, the matter interse between the parties have become final besides being conclusive and the same is binding.
10. One cannot brush aside a very important fact that while dismissing the C.A.Nos.5267-5269 of 2002 on 24.10.2008 the Honble Supreme Court of India has inevitably held that; "... therefore, we are not satisfied that appellants, are persons entitled to the benefits of the Act. In the absence of such satisfaction, the question of setting aside the auction sale under Section 23A of the Act does not arise. The rejection of the three applications is proper. As a consequence, the auction sales will have to be confirmed in favour of the auction-purchasers and the appeals have no merits and are accordingly dismissed."
11. It is brought to the notice of this Court that the sale has been confirmed by the Executing Court on 28.07.2009. It is significant to make a mention that the Honble Supreme Court has not consider the demand of the Petitioner to keep in abeyance the confirmation of sale till the disposal of the Section 47 application.
12. Be that as it may in view of the fact that the sale has been confirmed by the Executing Court on 28.07.2009 and also taking note of another important fact that the C.A.No.5267 - 5269 of 2002 being dismissed by the Honble Supreme Court and also subsequently, the clarification petition I.A.Nos.19-21 have also been dismissed and since the original suit No.226 of 1946 relates to the year of 1946 this Court is reminded of the well known saying that, an Homo-Sapien is a Mortal but the litigation is an immortal one and in law the person who has succeeded is entitled to see the fruits of the decree/order, and coming to the facts of the present case on hand, and assessing the same in a conspectus fashion and looking at from any angle this Court comes to the inevitable conclusion that after the proceedings before the Honble Supreme Court of India have reached finality it is not open to the revision petitioner to give life to an application under Section 47 of the Civil Procedure Code filed by the revision petitioner praying this Court for issuance of direction to the trial Court to dispose of the Section 47 application namely E.A.No.255 of 2009 is only a futile and otiose one and viewed in this perspective this Court dismisses the civil revision petition without costs.
13. In fine, the civil revision petition is dismissed leaving the parties to bear their own costs. The order passed by the Executing Court in E.A.No.255 of 2009 is affirmed by this Court. Considering the facts and circumstances of the case there shall be no order as to costs. Before parting with the case it is brought to the notice of this Court by the learned counsel for the revision petitioner that Section 47 application in E.A.No.139 of 1962 is not available among the records in E.P.No.134 of 1957 in O.S.No.226 of 1946 on the file of Learned II Additional Sub Judge, Coimbatore. At this juncture it is not out of place for this Court (for the knowledge and guidance of the Subordinate Courts and Judicial Officers) to make a mention that in regard to the missing of Court records the Honourable High Court in R.O.C.No.412/1980/F1 dated 10.09.1989 has issued a circular to the Subordinate Judicial Officers stating that the High Court has come across instances where missing of the records not reported to the High Court by the concerned subordinate Courts promptly and that the High Court directs whenever there is any instance of missing of Court records, it should be reported immediately either to the Registrar, High Court, Madras or to the Special Officer, Vigilance Cell, High Court, Madras. At this stage this Court recalls the observation of the Full Bench decision of this Court in Marakkarutti v. T.P.M. Veeran Kutty AIR 1923 Mad. 247 (FB): (1923) 1 MLJ 673 that the reconstruction of the record may go to the extent of rehearing of the case itself which means directing the parties to produce the relevant witnesses and in doing so, the Court will have to ascertain not only what the rights of the parties were, but also what the destroyed record was. Also in Katam Achutharamayya v. Rikki Nagabhushanan ILR (1957) A.P. 739, the Andhra Pradesh High Court has been required to decide the desirability of reconstructing the record of which the original award had been lost for no fault of either party and that it is held that the Court could under the Courts inherent power direct for reconstruction and upon the reconstruction of the record it would have the same effect as the originals themselves. Therefore, it will be quite in the fitness of things that the Executing Court shall act in terms of tenor and spirit of High Court circular in R.O.C.No.412/1980/F1 dated 10.09.1989 and further under its inherent power it shall reconstruct the Section 47 application E.A.No.139 of 1962 and to pass appropriate orders in the manner known to law in the said application within a period of 10 days from the date of receipt of the copy of this order and to report compliance to this Court without fail. Consequently, M.P.1 of 2009 is closed.
Chinna Karuppathal v. A.D. Sundara Bai & Others
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