# Periyammal (Dead) Through LRs & Ors v. V. Rajamani & Anr. Etc

- **Citation:** 2025 INSC 329
- **Court:** Supreme Court of India
- **Decided:** 2025-03-06
- **Case number:** Civil Appeal Nos. 3640-3642 of 2025
- **Bench:** J.B. Pardiwala, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/periyammal-dead-through-lrs-ors-v-v-rajamani-anr-etc-38870
- **Pages:** 58

## Headnote

Whether the courts below committed any error in upholding the
objections raised by the respondent nos. 1 and 2 herein against
execution of the decree on the claim of being in possession of
the suit property in their capacity as cultivating tenants; Whether
the respondent nos. 1 and 2 are entitled to the protection of the
Tamil Nadu Cultivating Tenants' Protection Act, 1955 and could
the Executing Court have decided the question of validity of the
decree on this ground.
Headnotes†
Code of Civil Procedure, 1908 - s.47; Or. XXI, rr.97, 101 - Tamil
Nadu Cultivating Tenants' Protection Act, 1955 - Objection
raised by Respondent nos.1 and 2 against execution of the
decree claiming to be in possession of the suit property in
their capacity as cultivating tenants, upheld by courts below -
Respondent nos.1 and 2, if entitled to the protection of the
1955 Act and whether the Executing Court could have decided
the question of validity of the decree on this ground:
Held: The decree in favour of the appellants granting specific
performance with possession was affirmed by the High Court
and the SLP against the order of the High Court also stood
dismissed - Respondent Nos. 1 and 2 chose not to contest the
original suit before the ASJ - They did not appear even before
the High Court and Supreme Court in the appeals filed by the
vendors (judgment debtors) - Further, the issues that ought to
have been raised by the parties during the adjudication of the
original suit cannot be determined by the executing court as
such adjudication may undermine the decree itself - Respondent
nos.1 and 2 could have filed a joint written statement stating that
* Author
[2025] 3 S.C.R.
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
they are cultivating tenants at the stage of the original suit itself,
but rather they raised the said issue in the form of objections at
the stage of execution - Furthermore, respondent nos.1 and 2
failed to produce any documentary evidence as regards their
claim of being cultivating tenants, even at the stage of their s.47
application - Present is a case of collusion between the vendors
and the respondent nos.1 and 2 (nephews of the vendors), to
deprive the appellants from availing the fruits of the decree in
their favour - Even otherwise, the respondent nos.1 and 2 cannot
claim protection of the special legislation of 1955 for the period
during which they were not registered as tenants cultivating the
suit properties - The certificate that they are in possession of the
suit properties since 1974 does not establish any independent
right of possession in their favour - Further, the certificate itself
appears to have been obtained in collusion with the vendors who
at the time of giving "no objection" had ceased to be the owners of
the suit property - Respondent nos.1 and 2 are not the bona fide
cultivating tenants of the suit property - Thus, there is no question
of deciding the validity of the decree on the ground of being a
nullity due to lack of jurisdiction of the civil court to evict cultivating
tenants - The rejection by the High Court of the amendments to
the execution petition filed by the appellants was erroneous, set
aside - Impugned order and the order passed by the Executing
Court, set aside. [Paras 60, 63-65, 68-71]
Directions by Supreme Court - Inordinate delay by the
Executing Courts in deciding execution petitions:
Held: In view of the direction in Rahul S. Shah case requiring the
execution proceedings to be completed within six months from
the date of filing, High Courts across the country to call for the
necessary information from their respective district judiciary as
regards pendency of the execution petitions - High Courts to issue
an administrative order or circular directing their respective district
judiciary to ensure that the execution petitions pending in various
courts shall be decided and disposed of within a period of six
months without fail otherwise the concerned presiding officer wo

## Text

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[2025] 3 S.C.R. 540 : 2025 INSC 329
Periyammal (Dead) Through LRs & Ors.
v.
V. Rajamani & Anr. Etc.
(Civil Appeal Nos. 3640-3642 of 2025)
06 March 2025
[J.B. Pardiwala* and Pankaj Mithal, JJ.]
Issue for Consideration
Whether the courts below committed any error in upholding the
objections raised by the respondent nos. 1 and 2 herein against
execution of the decree on the claim of being in possession of
the suit property in their capacity as cultivating tenants; Whether
the respondent nos. 1 and 2 are entitled to the protection of the
Tamil Nadu Cultivating Tenants' Protection Act, 1955 and could
the Executing Court have decided the question of validity of the
decree on this ground.
Headnotes†
Code of Civil Procedure, 1908 - s.47; Or. XXI, rr.97, 101 - Tamil
Nadu Cultivating Tenants' Protection Act, 1955 - Objection
raised by Respondent nos.1 and 2 against execution of the
decree claiming to be in possession of the suit property in
their capacity as cultivating tenants, upheld by courts below -
Respondent nos.1 and 2, if entitled to the protection of the
1955 Act and whether the Executing Court could have decided
the question of validity of the decree on this ground:
Held: The decree in favour of the appellants granting specific
performance with possession was affirmed by the High Court
and the SLP against the order of the High Court also stood
dismissed - Respondent Nos. 1 and 2 chose not to contest the
original suit before the ASJ - They did not appear even before
the High Court and Supreme Court in the appeals filed by the
vendors (judgment debtors) - Further, the issues that ought to
have been raised by the parties during the adjudication of the
original suit cannot be determined by the executing court as
such adjudication may undermine the decree itself - Respondent
nos.1 and 2 could have filed a joint written statement stating that
* Author
[2025] 3 S.C.R.
541
Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
they are cultivating tenants at the stage of the original suit itself,
but rather they raised the said issue in the form of objections at
the stage of execution - Furthermore, respondent nos.1 and 2
failed to produce any documentary evidence as regards their
claim of being cultivating tenants, even at the stage of their s.47
application - Present is a case of collusion between the vendors
and the respondent nos.1 and 2 (nephews of the vendors), to
deprive the appellants from availing the fruits of the decree in
their favour - Even otherwise, the respondent nos.1 and 2 cannot
claim protection of the special legislation of 1955 for the period
during which they were not registered as tenants cultivating the
suit properties - The certificate that they are in possession of the
suit properties since 1974 does not establish any independent
right of possession in their favour - Further, the certificate itself
appears to have been obtained in collusion with the vendors who
at the time of giving "no objection" had ceased to be the owners of
the suit property - Respondent nos.1 and 2 are not the bona fide
cultivating tenants of the suit property - Thus, there is no question
of deciding the validity of the decree on the ground of being a
nullity due to lack of jurisdiction of the civil court to evict cultivating
tenants - The rejection by the High Court of the amendments to
the execution petition filed by the appellants was erroneous, set
aside - Impugned order and the order passed by the Executing
Court, set aside. [Paras 60, 63-65, 68-71]
Directions by Supreme Court - Inordinate delay by the
Executing Courts in deciding execution petitions:
Held: In view of the direction in Rahul S. Shah case requiring the
execution proceedings to be completed within six months from
the date of filing, High Courts across the country to call for the
necessary information from their respective district judiciary as
regards pendency of the execution petitions - High Courts to issue
an administrative order or circular directing their respective district
judiciary to ensure that the execution petitions pending in various
courts shall be decided and disposed of within a period of six
months without fail otherwise the concerned presiding officer would
be answerable to the High Court on its administrative side - The
data along with the figures of pendency and disposal thereafter
collected by all the High Courts to be forwarded to the Registry
of the Supreme Court with individual reports. [Paras 74, 75, 77]
542
[2025] 3 S.C.R.
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Code of Civil Procedure, 1908 - s.47; Or.XXI rr.97, 101 - s.47
vis-à-vis Or.XXI r.97 - Questions to be determined by the Court
executing decree - Resistance or obstruction to possession
of immovable property:
Held: If an application u/Or.XXI, r.97 is made, then its determination
will be under r.101 - r.103 further provides that where any
application has been adjudicated upon u/rr.98 or 100, the order
made thereon shall have the same force and will be subject
to the same conditions as to an appeal or otherwise as if it
were a decree - U/s.47 all questions relating to the execution,
discharge or satisfaction of the decree, have to be determined
by the executing court whereas u/r. 101 all questions including
question relating to right, title or interest in the property arising
between the parties to the proceedings have to be determined
by the executing court - s.47 is a general provision whereas
Or.XXI, rr.97 and 101 deal with a specific situation - Moreover,
s.47 deals with executions of all kinds of decrees whereas Or.XXI,
rr.97 and 101 deal only with execution of decree for possession -
Apart from that, earlier, i.e., prior to the amendment, every order
falling u/s. 47 was appealable (as the terms 'decree' included the
order u/s.47) whereas now only certain orders as provided for
u/Or. XXI have been made appealable - In the present case, the
application of the respondents No.1 and 2 u/s.47 was in substance
an application for determination of their possessory rights under
Or XXI, r.97. [Para 52 ]
Civil Procedure Code, 1908 - s.47 - Or.XXI, r.101 - Harmonious
construction - Questions to be determined by the Court
executing decree:
Held: A harmonious reading of s.47 with Or.XXI r.101 implies that
questions relating to right, title or interest in a decretal property
must be related to the execution, discharge or satisfaction of the
decree - Thus, only matters arising subsequent to the passing of
the decree can be determined by an executing court u/s.47 and
Or.XXI R.101. [Para 62]
Code of Civil Procedure, 1908 - Or. XXI, r.97 - Resistance or
obstruction to possession of immovable property - Application
u/Or. XXI, r.97 - Nature:
[2025] 3 S.C.R.
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
Held: An application u/Or. XXI, r.97 may be made in respect of
obstruction raised by any person in obtaining possession of the
decretal property- Courts adjudicating such application have to
do so in accordance with r.101 and hold a full-fledged inquiry to
determine all questions including questions relating to right, title
or interest in the property arising between the parties. [Para 42]
Words and Phrases - Civil Procedure Code, 1908 - Or. XXI,
rr.35, 97-101 - Decree for immovable property - Resistance
or obstruction to possession of immovable property - "any
person" - Interpretation of:
Held: In execution of decree for possession of immovable property,
the executing court delivers actual physical possession of the
decretal land to the decree holder - r.35 confers jurisdiction on
the executing Court to remove any person, who is bound by the
decree and who refuses to vacate the property - "any person who
is bound by the decree", clearly mandates that removal can only
be of a person who is bound by the decree - Further, rr.97 to 101
deal with situation when execution is obstructed or resisted by
"any person" claiming right, title or interest in the property - The
words "any person" include even a stranger to a decree resisting
the decree of possession as not being bound by a decree or by
claiming independent right, title or interest to the property - Thus,
r.97 not only provides remedy to a decree holder in obtaining
possession of an immovable property but also to a stranger who
obstructs or resists delivery of possession of the property by claiming
derivative title from the judgment debtor or independent right, title
or interest in the decretal property - Whereas, r.99 gives right to
a third party claiming right, title or interest in the property to seek
restoration of the decretal property. [Paras 48, 49]
Case Law Cited
Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr. [1998] 2 SCR
587 : (1998) 3 SCC 723; C.F. Angadi v. Y.S. Hirannayya [1972]
2 SCR 515 : (1972) 1 SCC 191; Vasudev Dhanjibhai Modi v.
Rajabhai Abdul Rehman [1971] 1 SCR 66 : (1970) 1 SCC 670;
Rahul S. Shah v. Jinendra Kumar Gandhi [2021] 4 SCR 279 :
(2021) 6 SCC 418 - relied on.
Shreenath & Anr. v. Rajesh & Ors. [1998] 2 SCR 709 : (1998) 4
SCC 543; State of Bihar & Ors. v. Bihar Rajya Bhumi Vikas Bank
544
[2025] 3 S.C.R.
Digital Supreme Court Reports
Samiti [2018] 7 SCR 1147 : (2018) 9 SCC 472; Salem Advocate
Bar Association v. Union of India [2005] Supp. 1 SCR 929 : (2005)
6 SCC 344; Rajinder Kumar v. Kuldeep Singh [2014] 2 SCR 356 :
(2014) 15 SCC 529; Topanmal Chhotamal v. Kundomal Gangaram,
AIR 1960 SC 388; Smriti Debbarma v. Prabha Ranjan Debbarma
[2023] 1 SCR 355; Sunder Dass v. Ram Prakash [1977] 3 SCR
60 : (1977) 2 SCC 662; Brahmdeo Chaudhary v. Rishikesh Prasad
Jaiswal [1997] 1 SCR 463 : (1997) 3 SCC 694; NSS Narayan
Sarma & Ors. v. Goldstone Exports (P) Ltd. & Ors. [2001] Supp.
5 SCR 327 : (2002) 1 SCC 662; Samir Singh and Anr. v. Abdul
Rab [2014] 10 SCR 1004 : (2015) 1 SCC 379; Bhanwar Lal v.
Satyanarain [1994] Supp. 4 SCR 208 : (1995) 1 SCC 6; Bhoj
Raj Garg v. Goyal Education and Welfare Society & Ors., Special
Leave Petition (C) Nos. 19654 of 2022 - referred to.
List of Acts
Civil Procedure Code, 1908; Tamil Nadu Cultivating Tenants'
Protection Act, 1955.
List of Keywords
Section 47 and Order XXI Rule 97-103 of Code of Civil Procedure,
1908; Execution petition, Objections against execution of the
decree; Discharge or satisfaction; Cultivating tenants; Decretal
property; Executing court; Right of possession; Collusion; Lack
of jurisdiction; Objection at the stage of execution; Execution
proceedings; Agreement of sale; Amendment application;
Possession of immovable property; Resistance or obstruction;
Frustrate and defeat decree; Validity of decree; Revenue authorities;
Dispossession; Transferee pendente lite; Right, title or interest in
property; Independent right of possession; Judgment debtor; Notice
of execution of the sale deed; Bona fide and genuine; Original
vendors; Third party; "any person"; Stranger to a decree.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3640-3642
of 2025
From the Judgment and Order dated 18.12.2019 of the High
Court of Judicature at Madras in CRPNPD No. 4311 of 2011 and
CRPNPD Nos. 2150 and 2151 of 2015
[2025] 3 S.C.R.
545
Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
Appearances for Parties
Advs. for the Appellants:
Senthil Jagadeesan, Sr. Adv., Punit Manoj Agarwwal, Ms. Mrinal
Kanwar, Vaibhav.
Advs. for the Respondents:
Rahul Jain, Vishnu Shankar Jain.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided into the
following parts: -
INDEX*
A.
FACTUAL MATRIX ...........................................................
6
B.
SUBMISSIONS OF THE APPELLANTS ..........................
22
C.
SUBMISSIONS OF THE RESPONDENT NOS. 1 & 2 ....
25
D.
ISSUES TO BE DETERMINED ........................................
32
E.
ANALYSIS .........................................................................
33
(i)
Relevant statutory provisions .......................................
33
(ii)
Nature of application under Order XXI Rule 97 ..........
37
(iii)
Section 47 of the CPC vis-à-vis Order XXI Rule 97 of
the CPC ............................................................................
51
F.
CONCLUSION ..................................................................
77
1.
Leave granted.
2.
"The seeker of justice many a time has to take long circuitous
routes, both on account of hierarchy of courts and the procedural
law. Such persons are and can be dragged till the last ladder of the
said hierarchy for receiving justice but even here he only breathes
* Ed. Note: Pagination as per the original Judgment.
546
[2025] 3 S.C.R.
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fear of receiving the fruits of that justice for which he has been
aspiring to receive. To reach this stage is in itself an achievement
and satisfaction as he, by then has passed through a long arduous
journey of the procedural law with many hurdles replica of mountain
terrain with ridges and furrows. When he is ready to take the bite of
that fruit, he has to pass through the same terrain of the procedural
law in the execution proceedings, the morose is writ large on his face.
What looked inevitable to him to receive it at his hands distance is
deluded back into the horizon. The creation of the hierarchy of courts
was for a reasonable objective for conferring greater satisfaction to
the parties that errors, if any, by any of the lower courts under the
scrutiny of a higher court be rectified and long procedural laws also
with good intention to exclude and filter out all unwanted who may be
the cause of obstruction to such seeker in his journey to justice. But
this obviously is one of the causes of delay in justice. Of course, under
this pattern the party wrongfully gaining within permissible limits also
stretches the litigation as much as possible. Thus, this has been the
cause of anxiety and concern of various authorities, legislators and
courts. How to eliminate such a long consuming justice? We must
confess that we have still to go a long way before true satisfaction
in this regard is received. Even after one reaches the stage of final
decree, he has to undergo a long distance by passing through the
ordained procedure in the execution proceedings before he receives
the bowl of justice.
The courts within their limitation have been interpreting the procedural
laws so as to conclude all possible disputes pertaining to the
decretal property, which is within its fold in an execution proceeding,
i.e., including what may be raised later by way of another bout of
litigations through a fresh suit. Similarly, legislatures equally are also
endeavouring by amendments to achieve the same objective. The
present case is one in this regard. Keeping this in view, we now
proceed to examine the present case.
In interpreting any procedural law, where more than one interpretation
is possible, the one which curtails the procedure without eluding
justice is to be adopted. The procedural law is always subservient to
and is in aid of justice. Any interpretation which eludes or frustrates
the recipient of justice is not to be followed." [Shreenath & Anr. v.
Rajesh & Ors reported in (1998) 4 SCC 543]
[2025] 3 S.C.R.
547
Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
3.
We are tempted to preface our judgment with the above quoted
observations of this Court made almost three decades back, as
the situation remains the same even today. It is said that the woes
for the litigants in this country start once they are able to obtain a
decree in their favour and are unable to execute and reap its fruits
for years together.
4.
These appeals arise from a common judgment and order passed
by the High Court of Judicature at Madras dated 18.12.2019 in Civil
Revision Petition (NPD) No. 4311 of 2011 ("first revision petition")
and Civil Revision Petition (NPD) No. 2151 of 2015 ("second revision
petition") filed by the appellants herein under Section 115 of the
Code of Civil Procedure, 1908 (the "CPC") by which the High Court
rejected the revision petitions and thereby affirmed the orders passed
by the Additional Subordinate Judge, Salem ("ASJ") one allowing the
application filed by the respondent Nos. 1 and 2 herein, respectively,
under Section 47 of the CPC and rejecting the application filed by
the appellants herein seeking amendment in the execution petition.
A.
FACTUAL MATRIX
5.
One Ayyavoo Udayar, the father of the appellants herein entered
into an agreement of sale dated 30.06.1980 with Ramanujan and
Jagadeesan, the respondent nos. 3 and 4 herein (the "vendors")
respectively, whereby the respondents agreed to sell the property
under dispute (the "suit property") for Rs. 67,000/-. An earnest
money of Rs. 10,000/- was paid by Ayyavoo Udayar while entering
the agreement of sale. It was agreed between the parties that the
balance of Rs. 57,000/- would be paid on or before 15.11.1980 upon
receipt of which, the vendors would execute the sale deed.
6.
On 15.11.1980, Ayyavoo Udayar issued a telegram to the vendors
requesting that they should receive the balance consideration and
execute the sale deed. The vendors sent a reply stating that they
would execute the sale deed on 20.11.1980, however, no sale deed
was executed even on the said date. Since the vendors did not
come forward to execute the sale deed despite notice and talks of
settlement, Ayyavoo Udayar was compelled to file the O.S. No. 514
of 1983 before the Subordinate Judge, Salem praying for specific
performance of agreement of sale i.e. the execution and registration
of the sale deed in respect of the suit properties and delivery of
548
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actual physical possession of the same. The relief prayed for in the
plaint by the original plaintiff Ayyavoo Udayar is reproduced below:
"Therefore the plaintiff prays that this Honourable Court
may be pleased to pass a decree for specific performance.
(a) Directing the defendants 1 and 2 to execute and
register the sale deed in respect of the entire suit
properties for the sum of Rs. 67,000/- and deliver
actual possession of the entire suit properties to the
plaintiff, and if the defendants 1 and 2 fail to execute
the sale deed;
(b) The Court may be pleased to execute and register
the sale deed in respect of the entire suit properties
for Rs. 67,000/- in favour of the plaintiff and order
delivery of possession of the suit properties to the
plaintiff;
(c)
Directing the defendants 1 and 2 to pay the costs
of the suit;
(d) Directing the defendants 1 and 2 to deduct the value
of the trees cut by them after the date of the suit
agreement;
(e) Granting such other relief or reliefs as the court may
deem fit and necessary under the circumstances of
the case and thus render justice."
7.
Ayyavoo Udayar impleaded the respondent Nos. 1 and 2 respectively
herein in the O.S. No. 514 of 1983 along with the vendors. The
respondent nos. 1 and 2 herein are the sons of the vendors' sister
and were inducted into the suit properties to give an appearance
that they were in possession of the said properties. Ayyavoo Udayar
impleaded the respondent nos. 1 and 2 in order to avoid any possible
obstruction by them and to enable the appellants herein to take
delivery of possession of the suit properties without multiplicity of
proceedings. However, the respondent Nos. 1 and 2 herein thought
fit not to contest suit and allowed the suit to proceed ex parte against
them. The relevant portion of the plaint is reproduced below:
"10.⁠ ⁠Now that the time for filing the suit is likely to expire
the plaintiff has been for the past one month requesting
[2025] 3 S.C.R.
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
the mediators and the defendants 1 an 2 to see that
the sale deed is executed and property delivered to the
plaintiff after completing the registration formalities. But
the defendants 1 and 2 would not heed to the words of
the plaintiff nor to that of the mediators like Muthusami
Udayar son of Arunachala Udayar of Masinaickampatti
and Chinnasami Udayar of Ayothiapattinam. On the other
hand the 1st defendant seems to have inducted the
defendants 2 and 3 into the suit properties to make it
appear that they (defendants 3 and 4) are in possession
of the suit properties. The defendants 3 and 4 are the
1st defendant's sister's sons. They are obliged to the
defendants 1 and 2. All the defendants are now, for the
past one week giving out in the village by they would not
on any account allow the plaintiff to have the sale deed
executed in his favour or to enter into the suit property by
any means. Hence the plaintiff is constrained to file this
suit for specific performance. The defendants 3 and 4
are added in order to avoid any possible obstruction
by them and to enable the plaintiff to take delivery of
possession without multiplicity of proceedings."
(Emphasis supplied)
8.
The Additional Subordinate Judge, Salem on 02.04.1986 decreed
the original suit as prayed for and directed the vendors to execute
the sale deed within one month of the passing of the decree, failing
which the court would execute the sale deed. Aggrieved by the said
judgment and decree, the vendors preferred an appeal before the
High Court. A single judge partly allowed the appeal and modified
the decree to some extent. The respondent Nos. 1 and 2 did not
appear in the appeal proceedings as well.
9.
The second appeal preferred by the vendors before a division bench
of the High Court was also dismissed on 19.03.2004 subject to the
condition that the appellants herein would deposit a further sum of
Rs. 67,000/- as consideration within a period of one month from the
date of the order. Though the respondent Nos. 1 and 2 herein were
parties to the second appeal yet they did not participate during the
course of the hearing. Pursuant to the High Court's direction, the
appellants deposited a sum of Rs. 67,000/- on 19.04.2004.
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10. Thereafter, the vendors filed a special leave petition before this
Court challenging the judgment of the High Court dated 19.03.2004,
which came to be dismissed on 20.01.2006. The vendors thereafter
preferred a review petition against the said order which also came
to be dismissed by this Court on 18.04.2006.
11. In the meantime, the appellants filed R.E.P. No. 237 of 2004 for
execution of the sale deed in respect of the suit properties and
for delivery of possession thereof. All the respondents herein were
impleaded in the said execution petition and the vendors were
named as the persons against whom the execution of the decree
was sought. The said petition was dismissed on 03.12.2004 by the
ASJ on the ground that a special leave petition filed by the vendors
before this Court remained pending.
12. The appellants, aggrieved by the dismissal of the execution petition,
filed Civil Revision Petition (NPD) No. 2032 of 2005 before the High
Court and simultaneously filed another R.E.P. No. 244 of 2005 for
getting the sale deed executed in respect of the suit properties and
for delivery of possession thereof. The High Court vide its order dated
21.02.2006 allowed the CRP (NPD) No. 2032 of 2005 observing
that the ASJ had provided no reason for dismissing the execution
petition of the appellants except that the special leave petition filed
by the respondents herein remained pending. Since the special leave
petition before this Court came to be disposed on 20.01.2006, the
order of the ASJ dated 03.12.2004 was set aside.
13. Consequent to the order of the High Court dated 20.01.2006, the
proceedings in respect of the R.E.P. No. 237 of 2004 were restored
and the appellants withdrew the R.E.P. No. 244 of 2005.
14. Thereafter, the vendors filed Civil Revision Petition (NPD) No. 1865
of 2007 before the High Court challenging the order of the ASJ
accepting the deposit of Rs. 67,000/- made by the appellants on
19.04.2004 on the ground that such deposit was not made within a
period of thirty days as per the order dated 19.03.2004 of the High
Court. This revision petition came to be dismissed by the High Court
on 10.07.2007 and it was observed that the appellants herein were
late by one day in depositing the amount of Rs. 67,000/- because
18.04.2004 was the last day to deposit the amount and it was a
holiday. Since the appellants had deposited the amount on the next
working day, the deposit was considered as well within time.
[2025] 3 S.C.R.
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
15. On 17.08.2007, the Executing Court executed a registered sale
deed in favour of the appellants on behalf of all the respondents
to the original suit including the respondent Nos. 1 and 2 herein
who were in possession of the property but did not hold any title in
respect thereof.
16. Aggrieved by the inclusion of the names of respondent Nos. 1 and 2
in the sale deed, the vendors filed the Civil Revision Petition (NPD)
No. 3916 of 2007 before the High Court for deletion of the names
of the respondent Nos. 1 and 2 herein. The appellants also filed a
memo in this regard and agreed to the deletion of the names of the
respondent Nos. 1 and 2 from the sale deed. The High Court, by way
of its order dated 08.01.2008 allowed the deletion of the names of the
two respondents and directed the Executing Court to carry out the
requisite rectifications to the sale deed in this regard. Accordingly, a
rectification deed dated 25.01.2008 came to be executed removing
the names of the respondent Nos. 1 and 2 herein as the vendors
from the sale deed.
17. On 12.02.2008, the Executing Court passed an order for delivery of
possession of the suit property to the appellants herein. Pursuant to
the said order, the appellants along with the Village Administrative
Officer, Surveyor and Court Amin reached at the site of the property
to give effect to the order for delivery of possession. However, the
handing over of the possession of the property was obstructed by
the respondent No. 1 herein who threatened to self immolate himself
if anybody dared to enter the property. As the delivery of possession
could not be effected, a delivery warrant and obstruction report were
filed before the ASJ on 20.02.2008.
18. Subsequently, the respondent Nos. 1 and 2 herein filed an application
dated 12.03.2008 under Section 47 of the CPC ("R.E.A. 163 of
2011") before the ASJ on the following grounds:
(1) no notice regarding execution of the sale deed and delivery
of possession was served upon them due to which they were
unable to avail a fair chance of putting forth their objections;
(2) since their names were deleted from the sale deed so executed,
the same was not binding upon them and the executing court
had illegally added their names in the list of parties in the order
for delivery of possession;
(3) the appellants herein had acted fraudulently.
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An interim relief was also prayed for by the respondent Nos. 1 and 2
herein to stay the operation of the execution order, which directed
delivery of possession of the suit property to the appellants.
19. After filing the execution application, the respondent Nos. 1 and 2
herein filed a petition before the Tehsildar, Vazhapadi for inclusion
of their names in the cultivation account for the suit property
retrospectively from 1974 submitting that they were in possession of
the same since 1967. The series of orders delivered in this regard
are detailed below:
a)
The Tehsildar, Vazhapadi vide order dated 18.10.2008 held
that the respondent Nos. 1 and 2 herein were in possession
of the suit property and ordered that their names be entered
in the cultivation account of the same. The Tehsildar, however,
gave no finding regarding inclusion of the respondents' names
retrospectively from 1974.
b)
The respondent Nos. 1 and 2 herein, aggrieved by the order
dated 18.10.2008, filed W.P. No. 5032/09 before the Telsildar,
Vazhapadi to get their names registered in the cultivation account
in respect of the suit property from 1974 onwards. While the
hearing of the writ petition was going on, the vendors, whose
names were registered as pattadharars for the suit property,
gave a statement that the respondent Nos. 1 and 2 had been in
possession of the said land for a long time and that the vendors
did not have any objection to the inclusion of their names in
the cultivation account of the suit property. Upon examination
of relevant documents and the Village Administrative Officer,
the Tehsildar recorded that as the respondent Nos. 1 and 2
had been in enjoyment of the suit property for a long time, the
inclusion of their names in the cultivation account for the year
2008 was correct. However, their names cannot be entered in
the cultivation account as persons being in possession of the
suit property from 1974 onwards.
c)
Aggrieved by the non-inclusion of their names in the cultivation
account for the suit property retrospectively from 1974, the
respondent Nos. 1 and 2 herein appealed to the Revenue
Divisional Officer. It was held by the Revenue Divisional Officer
vide order dated 29.10.2009 that there is no provision in law
to enter the names of the respondent Nos. 1 and 2 in the
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cultivation accounts retrospectively from 1974 as such accounts
had already been closed and hence, no alteration could be
made therein. The respondents were granted leave to file an
application before the Tehsildar for issuance of a certificate
that they were in possession of the suit property since 1974.
20. The R.E.A. No. 163 of 2011 was initially rejected by the ASJ.
Consequently, the respondent Nos. 1 and 2 herein filed Civil Revision
Petition (NPD) No. 2354 of 2008 before the High Court. The High
Court vide order dated 25.04.2011 set aside the ASJ's order, which
rejected the execution application and observed that the same was
not passed on merits. The High Court directed the lower court to
dispose of the Execution Application filed under Section 47 of the
CPC read with Section 151 thereof and pass appropriate orders
within the time specified in the order.
21. Pursuant to the directions of the High Court, the ASJ vide order
dated 12.08.2011 allowed R.E.A. No. 163/2011 of the respondent
Nos. 1 and 2 herein and held as follows:
a)
The High Court, while executing the sale deed, ordered for
deletion of the names of the respondent Nos. 1 and 2 herein as
they were not the vendors who had title to sell the suit property.
b)
The respondent Nos. 1 and 2 by way of oral and documentary
evidence have established that they were in possession of
the suit property. On the other hand, the appellants herein did
not examine any independent witnesses to establish that the
respondent Nos. 1 and 2 were not in possession of the suit
property.
c)
Further, in both the execution petitions namely R.E.P. No. 237
of 2004 and R.E.P. No. 244 of 2005, the appellants did not
seek any relief for delivery of possession from the respondent
Nos. 1 and 2.
d)
The appellants can take over possession only after taking
appropriate legal steps/proceedings.
22. Aggrieved by the order of the ASJ, the appellants filed Civil Revision
Petition (NPD) No. 4311 of 2011 (hereinafter referred to as the "first
revision petition") before the High Court. The grounds taken in the
said petition are summarized below:
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a)
The order of the ASJ dated 12.08.2011 rejecting the appellants'
prayer on the ground that no notice of execution of the sale
deed by the court was served to the respondent Nos. 1 and 2,
was erroneous since notice to show cause against execution is
necessary only in certain circumstances as laid down in Order
XXI Rule 22 of the CPC. It was submitted that no notice was
mandatory in the case on hand as the execution petition was
filed by the decree-holder within two years of the confirmation
of the decree by the High Court.
b)
The Executing Court failed to consider that the respondent
Nos. 1 and 2 were impleaded as defendants in O.S. No. 514
of 1983 and were aware of the decree passed against them
therein on 02.04.1986. Further, the respondent Nos. 1 and
2, by their own admission, were fully aware of the decree for
delivery of possession passed against them and as such the
allegations that they were not aware of the events subsequent
thereto cannot be a ground to obstruct the execution of decree
by way of a petition under Section 47 of the CPC.
c)
Subsequent to the execution of agreement to sell between the
appellants and vendors, the respondent no. 1 herein had filed an
O.S. No. 1384 of 1980 for permanent injunction against Ayyavoo
Udayar, the vendors, respondent no. 2 herein as well as his
father, Venkatasamy Naidu. The said suit was subsequently
dismissed. However, such actions of the respondent No. 1 would
indicate that the contesting respondents herein were aware
about the agreement to sell before the institution of the suit
for specific performance in which they were parties. Therefore,
the respondent Nos. 1 and 2 had no good reason to contend
that they were not aware of the proceedings especially when
they continued to remain parties to the dispute in the original
suit till it attained finality by way of a judgment of this Court.
d)
The Executing Court also did not take into consideration the
fact that the execution application of the respondent Nos. 1
and 2 could not have been allowed because a sale deed had
already been executed by the ASJ in favour of the appellants
and against the vendors. The prayer for delivery of possession
was a consequential relief. The rejection of the said prayer by
the Executing Court based on hyper technical objections raised
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
by the respondent Nos. 1 and 2, could have been cured by
amending the prayer in R.E.P. No. 237 of 2004.
23. A week after the first revision petition i.e. on 08.11.2011, the appellants
filed the R.E.A. No. 14 of 2012 under Order VI Rule 17 read with
Section 151 of the CPC for amendments in the R.E.P. No. 237 of
2004. The appellants sought to record that the respondents' SLP
and Review Petition pursuant to the proceedings in the original
suit for specific performance, came to be dismissed by this Court.
Further, the appellants sought amendment of the prayer made in
the execution petition asking for execution of the sale deed on
behalf of the vendors and delivery of possession against all the
respondents. The vendors in their counter-statement alleged that
the said execution application was preferred by the appellants with
a mala fide intention and seeking amendment to the array of parties
against whom execution was prayed for, after a lapse of seven and
a half years was legally untenable.
24. The appellants, on 10.04.2013, sought for one another amendment
by way of R.E.A. No. 145 of 2013 seeking to disclose about the
other execution petitions filed after R.E.P. No. 237 of 2004. The
vendors filed a counter-statement to the same alleging that said
amendment application was filed with an ulterior motive of delaying
the execution proceedings. The respondent Nos. 1 and 2 herein
also filed a counter submitting that they were not parties to the
R.E.P. No. 237 of 2004 as they were not issued notice regarding
the same. They came into knowledge of the execution proceedings
only after the court Amin visited the property to deliver possession
of the property to the appellants.
25. The ASJ vide two separate orders dated 24.04.2015 allowed the
execution petition on the ground that the appellants had not made any
prayer in the execution petition against the respondent Nos. 1 and 2
and since the respondent Nos. 1 and 2 had proved their possession
of the suit property, the appellants could take possession only after
taking necessary legal steps. It was held that since the appellants
had not preferred any appeal or revision against the order dated
12.08.2011, the same had become final and binding on the parties.
As a result, the orders allowing R.E.P. 237 of 2004 would have no
effect and therefore, the question of amendment of the same did
not arise. The appellants challenged the order dated 24.04.2015 by
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way of Civil Revision Petition (NPD) No. 2151 of 2015 (hereinafter
referred to as the "second revision petition").
Impugned Order of the High Court
26. The High Court vide its common order (the "impugned order") held
as follows:
a)
The ASJ's order allowing the respondents' execution application
under Section 47 was correct on the aspect of serving of
notice. The appellants although were aware of the fact that
the respondent Nos. 1 and 2 were in possession of the suit
property yet they did not ask the court to serve notice to the said
respondents. Since no notice was provided to the respondent
Nos. 1 and 2, the court could not have passed a direction for
delivery of possession.
b)
The appellants did not take any steps to amend the execution
petition R.E.P. No. 237 of 2004 till the disposal of the
respondents' execution application R.E.A. No. 163 of 2011
under Section 47 of the CPC. Once the said application was
allowed, there remained no execution proceedings pending so
far as the respondent Nos. 1 and 2 were concerned. Therefore,
the amendment applications filed in R.E.A. No. 14 of 2012 and
R.E.A. No. 145 of 2015 were held to be non-maintainable.
c)
The appellants did not prefer any appeal against the order of
the ASJ dated 12.08.2011 allowing the application under Section
47 of the CPC, till 2015 and no reasons were assigned by the
appellants for such delay.
d)
Thus, the High Court held that there was no material irregularity
in the orders of the ASJ dated 12.08.2011 and 24.04.2015
respectively and upheld the same.
B.
SUBMISSIONS OF THE APPELLANTS
27. Mr. Senthil Jagadeesan, the learned senior counsel appearing on
behalf of the appellants submitted that the High Court could be said
to have committed a serious error in passing the impugned order
for the following reasons:
a.
The appellants had not filed any appeal or revision against the
order of the ASJ allowing the application under Section 47 of
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Periyammal (Dead) Through LRs & Ors. v. V. Rajamani & Anr. Etc.
the CPC, till 2015. However, the appellants had challenged the
said order by preferring the first revision petition as early as
31.10.2011 and the same was decided by the High Court by
way of the impugned order.
b.
The appellants had filed the execution petition on 19.07.2004
that is, after four months of confirmation of the decree in the
original suit by the High Court. The learned counsel invited
our attention to the provision in Order 21 Rule 22 of the CPC,
which stipulates that a notice to show cause against execution
is required to be served compulsorily only if the application for
such execution is made, inter alia, more than two years after
the date of the decree. He submitted that in view of the said
provision, no separate notice was required to be issued to the
judgment debtors in the case on hand as the execution petition
was filed well within the time period of two years.
c.
The contention of the respondent Nos. 1 and 2 that they
were not aware about the execution petition was erroneously
accepted by the High Court. The High Court failed to notice
that the respondent Nos. 1 and 2 had appeared through their
counsel in CRP No. 2032 of 2005 by way of which the R.E.P.
No. 237 of 2004 was restored. Therefore, the respondents were
fully aware about the resumption of proceedings before the
Executing Court but still chose not to participate therein.