Jayakumar v. Ramakrishnan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935 FAO.No. 356 of 2013 () ----------------------- I.A. NO.1195/13 IN O.S.NO.127/13 OF SUB COURT, SULTHAN BATHERY APPELLANT(S)/PETITIONER/PLAINTIFF: -------------------------------------------- JAYAKUMAR AGED 54 YEARS S/O.LATE KUMARAN, R/A.SUMMER FIELD APARTMENTS, D1 PAYYAMBALAM VILLAGE, KANNUR TALUK, KANNUR DIST BY ADVS.SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S SMT.VEENA HARI RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. R. RAMAKRISHNAN, AGED 70 YEARS S/O.LATE ANANTHOTH RAMACHANDRA IYYER, 57/B-48 STREET ASHOK NAGAR, MADRAS NOW R/A.72/2A V.O.C STREET EXTENSION, DASARADAPURAM, MADRAS-600093 2. R SURAYANARANAN, AGED 59 YEARS S/O.LATE ANANTHOTH RAMACHANDRA IYYER R/A.DOOR NO 72/2A KULASEKARAN STREET, DEVARAJ NAGAR DESARADAPURAM , CHENNAI-600093. 3. R.SULOCHANA, AGED 59 YEARS W/O.M.V.RADHAKRISHNAN AND D/O.LATE ANANTHOTH RAMACHANDRA IYYER R/A.DOOR NO 7, AMMAN STREET, PADMANABHA NAGAR CHOOLAIMADU, CHENNAI-600001 4. R.MEENAKSHI, AGED 59 YEARS W/O.VISWANATHAN AND D/O.LATE ANANTHOTH RAMACHANDRA IYYER R/A.DOOR NO 3, VALLAVAR IYYER, R/A. DOOR NO 3 VALLAVAR II, CROSSSTREET, PADMANABHA NAGAR CHOOLAIMEDU, CHENNAI-6000001 5. VIJAYALAKSHMI , AGED 63 YEARS W/O.P R RAJAGOPALAN AND D/O.LATE ANANTHOTH RAMACHANDRA IYYER R/A.'POOJA', CHERVANNOOR AMSOM DESOM , KOZHIKODE TALUK KOZHIKODE DIST-673001 6. ABOOBACKER CHENGAT, , AGED 61 YEARS S/O.ASSINAR, R/A.FRIDOUS, NEDUVA AMSOM DESOM THIROORANGADI TALUK, MALAPPURAM DIST, PIN-676005 7. SANDEEP P , AGED 37 YEARS S/O.BALAKRISHNAN R/A.PACHAT PALLIKKAL AMSOM DESOM THIROORANGADI TALUK MALAPPURAM DIST PIN-676005 R6,R 7 BY ADV. SRI.R.D.SHENOY (SR.) R6,R 7 BY ADV. SRI.R.PARTHASARATHY R2-R4 BY ADV. SRI.K.P.SUDHEER R5 BY ADV. SRI.K.RAMACHANDRAN R5 BY ADV. SMT.M.C.BINDUMOL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30-1-2014, THE COURT ON 11/2/2014 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & K. ABRAHAM MATHEW, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **F.A.O.NO.356 OF 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 11TH DAY OF FEBRUARY, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. The appellant herein is the plaintiff in O.S.No.127/2013 of the Sub Court, Sulthanbathery. He is aggrieved by the dismissal of I.A.No.1195/2013. The prayer in the said application was for issuance of a temporary injunction restraining respondents 6 and 7 from taking delivery of the property in execution of the decree in E.P.No.7/2006 pending before the same court and also to restrain respondents 1 to 5 from transferring or alienating the petition schedule properties till the disposal of the suit. 2. One Shri Ramachandra Iyer had held several items of properties. He died in the year 1955. The widow, viz. the mother of respondents 1 to 5 herein, was administering the properties. She had assigned by separate documents various items of properties in favour of different persons. During the relevant period the first respondent who is the elder son of Ramachandra Iyer, was a minor and after attaining majority, he filed a suit as O.S.No.84/1972 before the Addl. Sub Court, Thalassery to declare that FAO No.356/2013 -2- the assignments of plaint schedule items in favour of defendants 2 to 65 therein, by various documents, are null and void and will not bind on the plaintiff and that the first defendant mother had no authority to alienate the property. The suit was dismissed and the decree and judgment was reversed by a Division Bench of this Court in A.S. No.654/1993. By judgment dated 24.5.2005 the suit was decreed allowing recovery of possession of plaint schedule items except 1 acre out of the 4 acres of property in item No.19 of the plaint schedule claimed by the 50[th] defendant. 3. Respondent No.2 herein is another brother of respondent No. 1 and respondents 3, 4 and 5 are his sisters. The present suit, O.S. No.127/2013 is filed by the appellant/plaintiff seeking a decree for specific performance of an agreement executed by defendants 1 to 5 with the appellant on 20.5.2009. The total consideration shown is Rs.2 crores. An amount of Rs.25,000,00/- was paid as advance and later another amount of Rs.4 lakhs was paid as advance on 29.10.2010 by two cheques. As per the agreement, the balance consideration was to be paid within 18 months from the date of delivery of the property through court in execution of the FAO No.356/2013 -3- decree. It is his case that when the matter was delayed, as requested by the vendors, a further amount of Rs.4 lakhs was also paid. 4. Respondents 6 and 7 obtained a deed of assignment of decree which was executed by the first respondent. They had filed E.A. No.135/2013 in E.P.No.7/2006 seeking permission to continue the execution proceedings by substituting them as decree holders which was allowed. The appellant herein had filed E.A.No.180/2013 in the said execution petition, for impleading him in the execution proceedings, which was dismissed. The challenge against the said order before this Court in O.P.(C) No.3891/2013 had also ended in dismissal. This is the circumstance under which the first respondent filed I.A. No.1195/2013 seeking a temporary injunction as against respondents 6 and 7 from taking delivery of possession in E.P.No.7/2006 and also to restrain respondents 1 to 5 from alienating the property to third parties. The Court below by the impugned order, held that the plaintiff/petitioner is not entitled for grant of a temporary injunction. 5. We heard learned counsel for the appellant Shri K.P. Balasubramanyan, learned Senior Counsel Shri R.D. Shenoy and learned FAO No.356/2013 -4- counsel Shri Parthasarathy, appearing for respondents 6 and 7, Shri K.P. Sudheer, learned counsel appearing for respondents 1 to 4 and Shri K. Ramachandran, learned counsel appearing for the fifth respondent. 6. What is highlighted by the learned counsel for the appellant Shri K.P. Balasubramanyan is that the appellant had already advanced large amounts pursuant to the agreement for sale of the property. The documents can be got executed only after the proceedings in execution are over by getting recovery of the properties. Large items of properties of different nature including plantations, garden land, dry land and paddy land are involved. The first respondent, according to the learned counsel, was not legally entitled to assign the decree in favour of respondents 6 and 7, that too for a sum of Rs.4 lakhs, since respondents 2 to 5 have also rights as coowners in these items of properties. Therefore, the deed of assignment of decree itself is not valid. According to the learned counsel, if injunction is not granted as against respondents 6 and 7, there is a chance of alienation of properties by them. Lastly, Shri K.P. Balasubramanyan submitted that by appointing a receiver, this Court can direct the receiver to get the decree in FAO No.356/2013 -5- O.S.No.84/1972 executed. 7. Shri R.D. Shenoy, learned Senior Counsel appearing for respondents 6 and 7 submitted that respondents 6 and 7 alone were served notice before the Sub Court and had opposed the injunction application by submitting that merely on the basis of the agreement for sale, which does not create any interest in the property, the appellant herein is not entitled to seek injunction against the execution of a valid decree. It is submitted that there is no merit in the contention raised by the appellant that the assignment in favour of respondents 6 and 7 is not valid. Learned Senior Counsel, while supporting the order passed by the court below, submitted that as far as the attempt of the appellant to get injunction against respondents 6 and 7 from executing the decree is concerned, it may not benefit anybody. The properties are lying in the hands of various parties who are not parties in the present suit. The attempt of the appellant herein to get impleaded in the execution proceedings, has also not succeeded. For all these reasons, it is submitted that there is no question of granting any interim injunction as prayed for, as rightly found by the trial court. FAO No.356/2013 -6- 8. Shri K.P. Sudheer, learned counsel appearing for respondents 1 to 4 submitted that the assignment of decree is valid and respondents 6 and 7 are entitled to execute the decree. 9. Shri K. Ramachandran, learned counsel appearing for the fifth respondent who has filed a counter affidavit herein, submitted that the fifth respondent is entitled for the fruits of the decree, and assignment of the decree by first respondent cannot be recognised and the first respondent cannot be allowed to part with the decree for his benefit alone, since it has been clearly found by this Court in the judgment in A.S. No.654/1993 that the first respondent is entitled to maintain the suit for recovery of possession of plaint schedule properties on his behalf and on behalf of other coowners. Therefore, without the junction of other co-owners, no valid assignment of decree could have been done. Further, it is submitted that it is in the interest of all parties that the properties are preserved. It is also not proper that strangers like respondents 6 and 7 should be allowed to take delivery of the properties. Accordingly, learned counsel submitted that this Court may appoint a court receiver to take delivery of the properties or if FAO No.356/2013 -7- any of the parties are to be considered for appointment as receiver, the fifth respondent is willing to be appointed as receiver. Learned counsel highlighted that such a course will render justice to all parties. 10. Shri K.P. Balasubramanyan, learned counsel for the appellant also submitted that the Division Bench which heard the matter earlier, in the interim order dated 13.12.2013, suggested that respondents 6 and 7 could be permitted to continue the execution proceedings on the basis of the earlier decree and after taking delivery they could be appointed as receivers, to preserve the property as receivers and that they can be prohibited from alienating or encumbering those properties or committing any act of waste or improvement therein. It is submitted that it is not proper to place the property under the custody of respondents 6 and 7, as the assignment of decree to them itself is not sustainable. Therefore, learned counsel also submitted that a receiver can be appointed as per orders of this Court, even in these proceedings. According to the learned counsel, even while disposing of the application for temporary injunction, the courts have exercised the power to appoint receivers to preserve the properties pending FAO No.356/2013 -8- the suit. 11. Shri R.D. Shenoy, learned Senior Counsel appearing for respondents 6 and 7 opposed the submissions of the learned counsel for the appellant Shri K.P. Balasubramanyan and Shri K. Ramachandran, learned counsel appearing for the fifth respondent to appoint a receiver at this stage. It is submitted that there was no application before the court below to appoint a receiver and the court had no occasion to consider such a plea and therefore when the validity of the order passed by the court below alone is under challenge, it is not proper to seek appointment of a court receiver or to appoint the fifth respondent as a receiver. 12. We have considered the rival submissions. In the interim order dated 13.12.2013 in para 4, the suggestion made by this Court is that respondents 6 and 7 could be permitted to continue with the execution proceedings on the basis of the earlier decree and take delivery of the property and preserve the same, as receivers and that they can be prohibited from alienating or encumbering the properties or committing any act of waste or improvement therein. There is no consensus on the said suggestion FAO No.356/2013 -9- as of now. Therefore, we will have to deal with the entire matter independently. 13. The order passed by the learned Sub Judge is a detailed one wherein various aspects have been considered. The court below has adverted to the contentions of respondents 6 and 7 that the suit and the injunction application are barred by Sections 14 and 41 of the Specific Relief Act. It was held that the injunction sought is one against execution proceedings, and a person having a valid decree cannot be restrained by an injunction. Reliance was placed on the judgment of this Court in **Itten v. Subramania Iyyer** (1958 KLT 327). It was held that respondents 6 and 7 have already got substituted in execution proceedings as decree holders as per the order in E.A. No.135/2013, Ext.A10. Therefore, in the light of the provisions of the Specific Relief Act, a person executing a valid decree cannot be restrained by way of injunction. It was also held that the appellant has failed to make out a prima facie case. 14. A counter affidavit has been filed by respondents 6 and 7 herein traversing the various pleas made in the counter affidavit of the fifth FAO No.356/2013 -10- respondent. 15. After perusing the order passed by the court below and the reasoning therein, we are of the view that the only prayer in the injunction application was to restrain respondents 6 and 7 from executing a valid decree. The agreement for sale executed is between the appellant and respondents 1 to 5 and of course the appellant/plaintiff has various contentions about the liability of respondents 1 to 5 to get the documents executed in his favour and the plea that the appellant is always ready and willing to proceed with the execution of such documents. The fact remains that his application to get impleaded in E.P.No.7/2006 also stands dismissed as per order in E.A. No.180/2013. It cannot be said therefore, that he has made out a strong prima facie case for getting an injunction against respondents 6 and 7 in getting the decree executed. Apart from the same, as the properties are remaining in the hands of the third parties who were defendants in the earlier suit and only after delivery is effected, the appellant could try to get the sale deeds executed, there is no point in keeping the execution proceedings in abeyance till O.S. No.127/2013 filed FAO No.356/2013 -11- by the appellant seeking specific performance of the agreement attains a finality. Respondents 1 to 5 are not in possession of these properties. Hence, we do not find any reason to differ from the view expressed by the court below in the order under challenge. 16. What remains is the strong plea raised by Shri K.P. Balasubramanyan, learned counsel for the appellant and Shri K. Ramachandran, learned counsel for the fifth respondent to appoint a receiver. In fact, learned Senior Counsel for respondents 6 and 7 submitted that as and when delivery of the properties are obtained, respondents 6 and 7 can be asked to report the court about the said fact. 17. The plea for appointment of a receiver has not at all arisen for consideration before the trial court. There was no application to appoint a receiver. Therefore, even though it is pointed out by Shri K.P. Balasubramanyan, learned counsel for the appellant that this Court can appoint a receiver even while considering an application for injunction, according to us, it is upto the appellant or any other parties to seek such remedies before the court below. The strong apprehension expressed by FAO No.356/2013 -12- Shri K.P. Balasubramanyan is that once delivery is obtained, respondents 6 and 7 may induct third parties or alienate the properties. For that also, it is upto the first respondent to seek appropriate orders from the court below, if he is so advised. 18. In that view of the matter, we uphold the order passed by the court below. We further direct respondents 6 and 7 to report before the trial court where the present suit is pending with all details, as and when delivery is obtained of every items of properties, in E.P.No.7/2006. The appeal is dismissed subject to the above observations. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(K. ABRAHAM MATHEW, JUDGE)** **kav/**