Subramanian v. K.V. Karuppuswamy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH DAY OF JUNE 2012/24TH JYAISHTA 1934 OP(C).No. 1742 of 2011 (O) -------------------------IA NO.375 OF 2011 IN AS.280/2010 of I ADDL.DISTRICT COURT, PALAKKAD PETITIONER(S)/PETITIONER/APPELLANT: ---------------------------------- SUBRAMANIAN, S/O.RADHAKRISHNAN, SHOP EMPLOYEE, CHIRAPPUPADAKALAM, OLASSERY AMSOM AND DESOM, OLASSERY P.O. PALAKKAD TALUK AND DISTRICT. BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S)/RESPONDENT/RESPONDENT: -------------- K.V.KARUPPUSWAMY, S/O.VALAYUDHAN, OLASSERY AMSOM AND DESOM KODUMBU P.O., PALAKKAD TALUK AND DISTRICT-678551. BY ADV. SRI.P.R.VENKETESH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14-06-2012, ALONG WITH CRP NO.238 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO.1742/2011 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE COMMON JUDGMENT DATED 24.1.2000 PASSED IN OS NOS.516/1993 AND 778/1995 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD EXT.P2 TRUE COPY OF THE JUDGMENT DATED 26.11.2003 IN AS NOS.69/2000 AND 143/2000 ON THE FILE OF DISTRICT COURT, PALAKKAD EXT.P3 TRUE COPY OF THE WILL (DEED NO.27/1989) DATED 09.02.1989 EXECUTED BY CHINNAYI AMMAL THE 1ST PLAINTIFF IN OS 516/1993 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD EXT.P4 TRUE COPY OF THE PLAINT IN OS NO.177/2005 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD EXT.P5 TRUE COPY OF WRITTEN STATEMENT FILED IN OS NO.177/2005 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD EXT.P6 TRUE COPY OF JUDGMENT DATED 27.7.2010 PASSED IN OS NO.177/2005 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD EXT.P7 TRUE COPY OF THE APPEAL MEMO IN AS 280/2010 ON THE FILE OF DISTRICT COURT, PALAKKAD EXT.P8 TRUE COPY OF EP NO.266 IN OS 56/1993 ON THE FILE OF SUB COURT, PALAKKAD EXT.P9 TRUE COPY OF IA NO.375/2011 IN AS NO.280 OF 2010 ON THE FILE OF DISTRICT COURT, PALAKKAD EXT.P10 TRUE COPY OF THE OBJECTION FILED TO EXT.P9 EXT.P11 TRUE COPY OF THE ORDER DATED 1.4.2011 PASSED IN IA NO.375/2011 IN AS NO.280 OF 2010 ON THE FILE OF DISTRICT COURT, PALAKKAD RESPONDENT'S EXHIBITS: NIL //TRUE COPY// **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C). No.1742 of 2011 & C.R.P.No.238 of 2011 -------------------------------------Dated this the 14[th] day of June, 2012.** ## **JUDGMENT** Though these proceedings concern separate orders passed by two courts, having regard to the facts and circumstances brought before me I propose to dispose of these proceedings by a common judgment. 2. One Chinnayi Ammal along with her daughter, Janaki claiming that the suit property belonged to the said Chinnayi Ammal filed O.S.No.516 of 1993 in the Sub Court, Palakkad for its recovery of possession arraying one Radhakrishnan, the grandson of Chinnayi Ammal (son of Janaki), his wife and minor children including Subramanian (petitioner in this Original Petition and Civil Revision) as defendants. Since the children of Radhakrishnan including the petitioner were minors, the said Radhakrishnan was appointed as their guardian in the suit. He resisted the suit contending that Chinnayi Ammal had executed an agreement for sale of the suit property in his favour for a consideration of `40,000/- and received `33,000/- as advance. Radhakrishnan filed O.S.No.778 of 1995 in the same court against Chinnayi Ammal for specific performance of the said agreement for sale dated 10.06.1993. OP(C) No.1742/2011 & CRP No.238/2011 2 3. In the meantime, Chinnayi Ammal died. Thereon, Karuppuswamy, husband of Janaki was impleaded as the additional 3[rd] plaintiff in O.S.No.516 of 1993 on the strength of Will No.45 of 1993 allegedly executed by the late Chinnayi Ammal bequeathing the suit property to him. 4. Trial court took evidence in the two suits and disposed of the same by a common judgment. Trial court held that due execution of Will No.45 of 1993 is not proved but held that since Janaki, the 2[nd] plaintiff is the sole legal heir of the late Chinnayi Ammal, she is entitled to recover possession of the suit property from Radhakrishnan and other defendants including petitioner. O.S.No.778 of 1995 was dismissed. Radhakrishnan and others including petitioner challenged the common judgment and decree before the first appellate court. During the pendency of the appeal, Janaki executed sale deed No.1431 of 2000 in favour of the additional 3[rd] plaintiff. First appellate court, followed by this Court dismissed the appeal and second appeal. Thereby, the judgment and decree in O.S.No.516 of 1993 allowing the 3[rd] plaintiff (consequent to the assignment deed No.1431 of 2000) to recover possession of the suit property became final. Dismissal of O.S.No.778 of 1995 also became final. 5. In the meantime, petitioner attained majority. He filed O.S.No.177 of 2005 in the Sub Court, Palakkad. He claimed that Chinnayi Ammal had bequeathed the suit property to him and his father, Radhakrishnan as per Will OP(C) No.1742/2011 & CRP No.238/2011 3 No.27 of 1989. Since that is the last Will and testament of Chinnayi Ammal, on her death the suit property devolved on petitioner and his father, Radhakrishnan, jointly. He therefore, prayed for partition of the suit property between himself and Radhakrishnan. He alleged that Radhakrishnan who was aware of Will No.27 of 1989 had not raised a contention in O.S.No.516 of 1993 even after the death of Chinnayi Ammal that by virtue of Will No.27 of 1989 the suit property belonged to him and Radhakrishnan and hence Janaki was not competent to assign the property in favour of the additional 3[rd] plaintiff. That suit ended in a dismissal. Petitioner has challenged that judgment and decree in A.S.No.280 of 2010 which is pending in the District Court, Palakkad. 6. In the meantime the additional 3[rd] plaintiff sought execution of the decree in O.S.No.516 of 1993 and has sought to recover possession of the suit property from the judgment debtors in that suit including petitioner. Petitioner filed objection to the execution petition (E.P.No.266 of 2010) contending that the decree in O.S.No.516 of 1993 is a nullity as his guardian, the said Radhakrishnan had not protected his interest in the suit, was having interest adverse to his interest and has acted in gross negligence of his interest and hence the decree in O.S.No.516 of 1993 is not binding on petitioner. Executing court after hearing both sides rejected the objection by order dated 08.04.2011 and proceeded to execute the decree. That order is under challenge in C.R.P.No.238 of 2011. OP(C) No.1742/2011 & CRP No.238/2011 4 7. In A.S.No.280 of 2010 petitioner (who is the appellant) filed I.A.No.375 of 2011 (Ext.P9 in O.P.(C) No.1742 of 2011), an application for stay of execution of the decree in O.S.No.516 of 1993. That application was dismissed by the learned Additional District Judge by order dated 01.04.2011. The said order is under challenge in O.P.(C) No.1742 of 2011. 8. Learned counsel for petitioner has contended that gross negligence of the guardian of petitioner in conducting the case on behalf of petitioner in O.S.No.516 of 1993 is writ large from the very fact that he suppressed the fact of Chinnayi Ammal executing Will No.27 of 1989 bequeathing the suit property in favour of himself and the guardian (Radhakrishnan). According to the learned counsel, when there is gross negligence on the part of the guardian, the decree obtained against the minor is a nullity and hence finding of the executing court is not correct. Learned counsel also argued that having regard to the facts and circumstances of the case and as learned District Judge was yet to decide the various contentions in A.S.No.280 of 2010 it was only appropriate that execution of the decree in O.S.No.516 of 1993 was stayed until the decision in A.S.No.280 of 2010. 9. Learned counsel for respondent/decree holder/additional 3[rd] plaintiff has contended that it is not within the power of the executing court to go behind the decree and conduct an enquiry as to whether the decree is a nullity as pleaded by the petitioner. The decree in O.S.No.516 of 1993 having been OP(C) No.1742/2011 & CRP No.238/2011 5 confirmed by the first and second appellate courts, challenge to that decree cannot stand. It is further argued that so far as Ext.P9, application (in O.P.(C) No.1742 of 2011) preferred by the appellant in A.S.No.280 of 2010 is concerned, that court could not have granted a stay of execution of the decree in O.S.No.516 of 1993 since that court was not sitting in appeal over the judgment and decree of the trial court in O.S.No.516 of 1993. 10. It is settled by the various binding authorities that the executing court cannot go behind the decree and conduct an enquiry whether the decree is null and void. Executing court cannot conduct a rowing enquiry in the matter. It is only in cases where lack of inherent jurisdiction is apparent on the face of record that the executing court could refuse to execute the decree. Support for that view is available in **Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others ((1970) 1 SCC 670), Vettimoodu Milk Producers' Co-op. Society Ltd. and others v. Catholic Syrian Bank Ltd. (1994 (2) KLJ 764)** and **The Vicar, Jerusalem Marthoma Church, Nanthencode v. Mamman Thomas & Others (2010 (3) KLJ 745)** . 11. The question whether the guardian had properly acted on behalf of petitioner (3[rd] defendant in O.S.No.516 of 1993) whether there was negligence on his part in conducting the case on behalf of petitioner or, whether the guardian had any interest adverse to that of petitioner are matters which require OP(C) No.1742/2011 & CRP No.238/2011 6 a detailed enquiry and as this Court in . **Vettimoodu Milk Producers' Co-op. Society Ltd. and others v. Catholic Syrian Bank Ltd.** (supra) has pointed out, such an enquiry is not contemplated in the execution proceeding. It is not possible to say that on the face of the record, the decree in O.S.No.516 of 1993 is null and void so that it is not executable. Hence the executing court is right in rejecting the contention of petitioner as to the executability of the decree. 12. So far as Ext.P9, application in O.P.(C) No.1742 of 2011 preferred by the appellant in A.S.No.280 of 2010 is concerned, the request was to stay execution of the decree in O.S.No.516 of 1993. That application was dismissed by Ext.P11, order. I must notice that learned Additional District Judge was not sitting in appeal over the judgment and decree in O.S.No.516 of 1993 while entertaining A.S.No.280 of 2010. In the circumstances, learned Additional District Judge cannot be found fault with for not allowing the stay requested for in Ext.P9, application. 13. Learned counsel for petitioner has submitted that petitioner and family are residing in the building in the suit property and that if before the decision in A.S.No.280 of 2010 they are evicted, they will put to irreparable loss and injury. Learned counsel submits that an application for amendment of plaint in O.S.No.177 of 2005 has already been made before learned Additional District Judge in A.S.No.280 of 2010 and the said application also is pending decision. Learned counsel in the circumstances requests that in case decree in OP(C) No.1742/2011 & CRP No.238/2011 7 O.S.No.516 of 1993 is executed, occupation of petitioner and family in the building in the suit property may not be disturbed until decision in A.S.No.280 of 2010. 14. Learned counsel for respondent submitted that such an indulgence is not required since the suit was filed in the year, 1993 and since then parties are litigating in various forums. According to the learned counsel, if execution of decree is in any manner delayed, it will cause injustice to the respondent. 15. Having regard to the circumstances placed before me, I am inclined to think that petitioner and family could be permitted to continue their occupation of the building in the suit property for some time so that in the meantime, A.S.No.280 of 2010 could be disposed of. But, there is no reason why execution as against the suit property other than the building in the suit property should be prevented. If so advised, it is open to the respondent to get symbolic delivery of the building in the suit property. Resultantly, the Original Petition and Civil Revision are disposed of as under: i. O.P.(C) No.1742 of 2011 and C.R.P.No.238 of 2011 are dismissed. OP(C) No.1742/2011 & CRP No.238/2011 8 ii. It is made clear that it is open to the respondent to proceed with execution of the decree in O.S.No.516 of 1993 subject to the following directions: (a) Petitioner and family are permitted to continue occupation of the building in the suit property and execution of the decree shall not disturb that occupation until disposal of A.S.No.280 of 2010 of the District Court, Palakkad. (b) Petitioner and family are permitted to enjoy the amenities they are now enjoying in connection with their occupation of building in the suit property. But, it shall not be construed as petitioner and family being in possession and/or occupation of the suit property other than the building and other structures they are permitted to occupy hereby. (c) It is made clear that if so advised, without disturbing occupation of the building and enjoyment of amenities as aforesaid, respondent could take symbolic delivery of the building and other structures as well. (d) Petitioner shall not create documents with respect to the building or encumber or induct third parties into possession thereof. Petitioner shall not cause any damage to the building and other structures if any, in the suit property. OP(C) No.1742/2011 & CRP No.238/2011 9 (e) Learned I Additional District Judge, Palakkad is directed to expedite disposal of A.S.No.280 of 2010 having regard to the fact that the litigation has started in the year, 1993. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**