R. Janardhanan Nair v. V. Sadanandan and others (CRP No. 904 of 2004)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938** ## **CRP.No. 904 of 2004 (E)** **-------------------------------------** ## **E.A.NO. 202 OF 2004 IN E.P.NO. 175/1999 IN O.S.NO. 184/1957 OF THE PRINCIPAL SUB COURT, KOLLAM** **----------------** ## **REVISION PETITIONER(S)/PETITIONER :** **------------------------------------------------------------** - **1. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.(DIED)** ## *** ADDITIONAL REVISION PETITIONERS 2 TO 6 IMPLEADED** **2. LALITHABHAI AMMA, AGED 61 YEARS, W/O. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.** **3. JAYA NAIR, AGED 40 YEARS, D/O. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.** **4. ANIL KUMAR, AGED 39 YEARS, S/O. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.** **5. AJITHKUMAR, AGED 38 YEARS, S/O. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.** **6. SMITHA J.NAIR, AGED 30 YEARS, D/O. R.JANARDHANAN NAIR, R.J.NIVAS, PUNNATHALA CHERRY, KOLLAM.** - **ADDITIONAL REVISION PETITIONERS 2 TO 6 ARE IMPLEADED AS LR'S OF DECEASED REVISION PETITIONER, AS PER ORDER DATED 17.09.2014 IN I.A.NO. 871 OF 2009.** ## **BY ADV. SRI.K.SUBASH CHANDRA BOSE** **..2/-** **..2..** ## **CRP.No. 904 of 2004 (E)** ## **-------------------------------------** ## **RESPONDENT(S)/RESPONDENTS :** ## **-----------------------------------------------------** - **1. V.SADANANDAN, PAZHAVILA VEEDU, CHERRYKONATHU CHERRY, THRIKKOVILVATTOM VILLAGE.(DIED)** - **2. K.LAKSHMI KUTTY, PUTHEN VILA KOZHAKKE VEEDU, PERROR CHERRY, THRIKKOVILVATTOM VILLAGE.(DIED)** - **3. L.RAJAMMA, -DO- -DO- (DIED)** **4. L.JAGADAMMA, -DO- -DO-** **5. G.PARASURAMAN, -DO- -DO-** **6. G.BABY, -DO- -DO-** **7. R.RAVEENDRAN, CHARUVILA PUTHEN VEEDU, PARAKKOTTU KONAM, NEDUMPANA VILLAGE.** **8. R.DAMODARAN, -DO- -DO-** **9. P.NALINI, -DO- -DO-** - **10. K.KUNJU KUTTY, MUKALIL VEEDU, MULAVANA CHERRY. (DIED)** - **11. R.GOPALAKRISHNAN, -DO- -DO- (DIED)** - **12. R.SOMANATHAN, -DO- -DO- (DIED)** **13. P.OMANA, CHARUVILA PUTHEN VEEDU, NEDUMPANA.** **14. P.SOLOCHANA, -DO- -DO-** **..3/-** **..3..** **CRP.No. 904 of 2004 (E)** ## **-------------------------------------** ## **15. SANTHAKUMARY BALAN, MUKALIL VEEDU, MULAVANA CHERRY.** **16. B.SINDHU, -DO- -DO-** **17. B.BINDHU, -DO- -DO-** **18. B.BINA, -DO- -DO-** **19. PADMAVATHI KUMARAN, CHARUVILA KIZHAKKE PUTHEN VEEDU, NEDUMPANA CHERRY.** **20. K.CHANDRAMOHANAN, -DO- -DO-** **21. SUNANDA SANKER, -DO- -DO-** **22. K.RAJ MOHAN, -DO- -DO-** **23. K.CHANDRA KUMAR, -DO- -DO-** ## *** ADDITIONAL R24 TO R28 IMPLEADED** **24. THANKAMANI GOPALAKRISHNAN, ANIL BHAVANA, MULAVANA P.O., KOLLAM.** **25. G.ANIL, -DO- -DO-** **26. G.SHILAJA, -DO- -DO-** **27. G.ANILA, -DO- -DO-** **28. G.BINDU, -DO- -DO-** ## *** ADDITIONAL R29 TO R32 IMPLEADED** ## **29. SANTHA SOMANATHAN, MUKALIL VEEDU, MULAVANA P.O., KOLLAM.** **..4/-** **..4..** **CRP.No. 904 of 2004 (E) -------------------------------------** **30. S.SHIJI, -DO- -DO-** **31. S.SHIMI, -DO- -DO-** **32. S.VIJI, -DO- -DO-** *** ADDITIONAL R24 TO R28 ARE IMPLEADED AS THE LEGAL HEIRS OF R11 AS PER ORDER DATED 22.07.2008 IN I.A.NO. 2779 OF 2004 AND ADDITIONAL R29 TO R32 ARE IMPLEADED AS THE LEGAL HEIRS OF R12 AS PER ORDER DATED 22.07.2008 ON I.A.NO. 2780 OF 2004.** ## *** ADDITIONAL R33 TO R39 IMPLEADED** **33. L.SANTHAMMA, D/O. LEKSHMIKUTTY, PUTHEN VILA KIZHAKKE VEEDU, PERROR CHERRY, THRIKKOVILVATTOM VILLAGE, KOLLAM.** **34. L.REMANIKUTTY, D/O. LEKSHMIKUTTY, -DO- -DO-** **35. BALAKRISHNAN, S/O. LEKSHMIKUTTY, -DO- -DO-** **36. MOHANA BABU, S/O. RAJAMMA, -DO- -DO-** **37. SHEELA, D/O. RAJAMMA, -DO- -DO-** **38. PRASANNA, D/O. RAJAMMA, -DO- -DO-** **39. SURESH BABU, D/O. RAJAMMA, -DO- -DO-** - **ADDITIONAL RESPONDENT 33 TO 39 ARE IMPLEADED AS LR'S OF THE DECEASED R2 AND R3 AND RESPONDENTS 3 TO 6, ALREADY IN THE PARTY ARRAY, ARE RECORDED AS LR'S OF THE DECEASED R2, AS PER ORDER DATED 17.09.2014 IN I.A.NO. 246 OF 2007.** *** DEATH OF R10 IS RECORDED AND R11, 12, 15 TO 18 ARE RECORDED AS LR'S OF DECEASED R10 SUBJECT TO THE DEATH OF R11 AND R12, AS PER ORDER DATED 17.09.2014 IN I.A.NO. 2077 OF 2014.** ## **BY ADV. SRI.L.GOPALAKRISHNAN POTTI** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRP.No. 904 of 2004 (E) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** |**ANNEXURE I:**|**TRUE COPY OF THE MORTGAGE DEED DATED 06.08.1995**| |---|---| ||**M.E.**| |**ANNEXURE II:**|**TRUE COPY OF THE PARTITION DEED DATED 23.04.1104**| ||**M.E.**| |**ANNEXURE III:**|**TRUE COPY OF THE RELEASE DEED NO. 770**| ||**DATED 02.02.1105 M.E.**| |**ANNEXURE IV:**|**TRUE COPY OF THE RELEASE DEED NO. 769**| ||**DATED 28.02.1105 M.E.**| |**ANNEXURE V:**|**TRUE COPY OF THE SALE DEED NO. 3537**| ||**DATED 31.11.1110.**| |**ANNEXURE VI:**|**TRUE COPY OF THE PARTITION DEED NO. 1815**| ||**DATED 20.05.1958.**| |**ANNEXURE VII:**|**TRUE COPY OF THE SALE DEED NO. 1806 DATED 24.06.1966**| |**ANNEXURE VIII:**|**TRUE COPY OF THE PROPERTY TAX ASSESSMENT**| ||**REGISTER.**| |**ANNEXURE VIII(A):**|**TRUE COPY OF THE PROPERTY TAX ASSESSMENT**| ||**REGISTER.**| |**ANNEXURE VIII(B):**|**TRUE COPY OF THE PROPERTY TAX ASSESSMENT**| ||**REGISTER.**| |**ANNEXURE IX:**|**TRUE COPY OF THE PLAINT IN O.S.NO. 184/1957 BEFORE**| ||**THE DISTRICT COURT, KOLLAM.**| |**ANNEXURE X:**|**TRUE COPY OF THE DOCUMENT DATED 12.08.1104 M.E.**| |**ANNEXURE XI:**|**TRUE COPY OF THE PARTITION DEED NO. 1888 OF 1118**| ||**M.E.**| |**ANNEXURE XII:**|**TRUE COPY OF THE OBJECTION IN E.A.NO. 171/1985.**| |**ANNEXURE XIII:**|**TRUE COPY OF THE COMMISSION APPLICATION FILED**| ||**IN E.A.NO. 360/1986.**| |**ANNEXURE XIV:**|**TRUE COPY OF THE COMMON ORDER IN E.A.NO. 232/96**| ||**AND 360/86 DATED 07.09.1989.**| |**ANNEXURE XV:**|**TRUE COPY OF THE PETITION BEFORE THE SUB COURT,**| ||**KOLLAM.**| **CRP.No. 904 of 2004 (E) -------------------------------------** **ANNEXURE XVI: TRUE COPY OF THE PRELIMINARY JUDGMENT IN O.S.NO. 184/1957 DATED 26.03.1958. ANNEXURE XVII: TRUE COPY OF THE FINAL DECREE IN O.S.NO. 184/57 OF THE SUB COURT, KOLLAM DATED 30.09.1976. ANNEXURE XVIII: TRUE COPY OF THE LITHO PLAN IN SY. NO. 5685, 5687 ETC. OF KOLLAM VILLAGE. ANNEXURE XIX: TRUE COPY OF THE ORDER IN C.R.P.NO. 1575 OF 1985 BEFORE THE HON'BLE HIGH COURT OF KERALA DATED 19.03.1986. ANNEXURE XX: TRUE COPY OF THE ORDER IN C.R.P.NO. 2577 OF 1989 DATED 19.06.1995 BEFORE THE HON'BLE HIGH COURT OF KERALA.** ## **RESPONDENT(S)' ANNEXURES :** ## **NIL** ## **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **A. MUHAMED MUSTAQUE, J.** -------------------------------------------------- C.R.P. No. 904 of 2004 -------------------------------------------------Dated this the 2[nd] day of March, 2017 ## **O R D E R** - 1.In this revision petition, a third party to a decree questions the executability of the decree. - 2.The suit was instituted in the year 1957 as OS No.53/1124 M.E. on the file of the District Court, Kollam, which was subsequently renumbered as OS No.184/1957. The suit was one for partition and cancellation of documents. The petitioner herein purchased 9½ cents of land from the 37[th] defendant. In the suit, a declaration was made that the document in favour of the 37[th] defendant is void. Thereafter, a final decree was passed. In execution, a notice was issued to the petitioner as the occupant of the property. The petitioner entered appearance and resisted the execution. The execution court overruled the objection and ordered delivery. This was carried in C.R.P. No. 904 of 2004 **==> picture [20 x 9] intentionally omitted <==** revision before this Court in CRP No.1575/1985. This Court dismissed the revision petition, holding that alienation in favour of the 37[th] defendant in respect of the 9½ cents is declared to be void by the decree in the suit and in such circumstances, the contention as to identity of the property is without any merit. It was also held that the transaction between the 37[th] defendant and the petitioner is hit by lis pendens and therefore, the petitioner's claim is unsustainable. Thus, holding that the petitioner's title is hit by lis pendens, the revision petition was dismissed. 3.Thereafter, the petitioner filed EA No.232/1986, raising the question of identity in the execution petition. The execution court dismissed the above application. The petitioner again filed an application, which was heard along with other applications filed by the other occupants. The petitioner's application was dismissed. Thereupon, the petitioner, challenging the order dismissing EA No.232/1986, filed CRP No.2577/1989. This Court, observing that the petitioner is a lis C.R.P. No. 904 of 2004 **==> picture [20 x 9] intentionally omitted <==** pendens transferee and also noting the order in the earlier revision overruling identity, dismissed CRP No.2577/1989. The revision petitioner also filed a suit as OS No.30/1999 on the file of the Addl. Sub Court, Kollam to set aside the decree and judgment on the ground of fraud and consequent injunction. This was dismissed by the trial court on the ground of limitation. It was carried in appeal before this Court as AS No.542/2001, in which the decree and judgment are affirmed, upholding that the suit is barred by limitation. 4.The present controversy is in respect of the order in EA No.202/2004 in EP No.175/1999 in OS No.184/1957. This application was filed by the petitioner under Section 47 of CPC. The petitioner's contention in EA No.202/2004 was that the final decree is not engrossed in stamp paper as provided in the Civil Rules of Practice. The petitioner also raised the allegation of fraud. According to the petitioner, allegation of fraud can be raised at any stage and there is no bar in raising such a plea even in collateral proceedings. Therefore, C.R.P. No. 904 of 2004 ..4.. even if the suit is dismissed, the petitioner can very well resist the execution of the decree on the ground of fraud. The petitioner relied on a decision of the apex court in **Bhavana Vaga** v. **Solanki Halugi** [AIR 1972 SC 1371]. The court below dismissed the application. It was also pointed out in the application that the decree holders relinquished the right over 9½ cents, item No.4 of the decree schedule property, in favour of the predecessor in interest. This will show the extent of fraud committed by the decree holders. 5.The question of fraud is certainly a ground, that could be raised in collateral proceedings. However, knowledge to such fraud assumes importance when a challenge is made based on the allegation of fraud. First of such applications, resisting the decree, was filed when the petitioner received a notice in execution petition. This Court, in the earlier order passed in CRP No.1575/1985, noted that alienation in favour of his predecessor in interest is declared to be void. Certainly, this is the first opportunity to the petitioner C.R.P. No. 904 of 2004 ..5.. to demonstrate the fraud committed on him by the decree holders along with his predecessor in interest. Fraud would vitiate the entire process. But, fraud is a weapon to the aggrieved to resist such process. Proceedings are streamlined by procedure and rules. Certainly, sanctity has to be ensured in the proceedings. Having not raised an allegation of fraud on the first opportunity available to the petitioner, he cannot be heard at a later stage to resist a decree on a question of fraud. The petitioner, in fact, was very well aware of the alleged fraud committed on him when the decree was put into motion in execution. This is exactly the reason why he filed a suit in the year 2001, immediately after the dismissal of the revision way back in 1986, challenging the decree and judgment alleging fraud. If a person fails to resist the execution of a decree when he had fullest opportunity to detect fraud, he is estopped from raising fraud at a later stage of the proceedings. 6.Secondly, the petitioner cannot file an application C.R.P. No. 904 of 2004 ..6.. under Section 47, in which he is not a party. Then, the question is whether such a question can be raised under Section 151 of CPC. It is to be noted that fraud is a weapon for resistance, which is required to be adjudicated as an issue; and therefore, certainly, it requires a substantial power for adjudication. That adjudication cannot be done by invoking power under Section 151 of CPC. - 7.In view of the above, this Court is of the view that the execution of decree cannot be resisted at this stage, alleging fraud. Therefore, the decision cited by the petitioner may not have relevance in this context. - 8.Accordingly, the revision petition is dismissed. No costs. Sd/- **A. MUHAMED MUSTAQUE JUDGE** bka/-