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CASE NO.: Appeal (civil)  7541-7542 of 2001

PETITIONER: V. HUCHESWARAN                                   

RESPONDENT: M/s. Madras Hardware Mart                        

DATE OF JUDGMENT: 18/10/2005

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR,J.

       O.S.No.683/1970 before  the X Asstt.Judge, City  Civil Court, Madras was a partition suit in which a  preliminary decree for partition  was passed on   28.4.1972 and  was followed by a   final decree for  partition on  1.12.1975.   The 1st defendant in the suit  is the father  and the  2nd , 3rd and 4th defendants and  the 1st plaintiff are the sons.  The  1st plaintiff having  died, his  legal  representatives were brought on record  as plaintiffs in his place.         Several Civil Revision Petitions, being  C.R.P.Nos.711/1993, 4,5, and 7 of 1995, all arising out  of the aforesaid suit, were taken up for hearing and  disposal  together  by a learned  single Judge of the  Madras High Court   and were disposed of by his   judgment and order dated 22.11.1995.         The suit was in respect of a house property and by  the preliminary decree, the 1/5th  share of  each of the  parties was declared.  By the final decree, the 1st     plaintiff  and 2nd and 3rd defendants were directed to  sell their 3/5th share to the 1st and 4th defendants who  owned the remaining 2/5th share together.  The 5th  defendant in the suit was a mortgagee under a  mortgage deed executed by the 1st defendant on  7.3.1970  in respect of his  1/5th share in the suit  property.  By a subsequent deed, the 5th defendant   assigned the said mortgage to the 6th defendant on  24.7.1975.  The 6th defendant, who was a tenant  of a  portion of the said property, was not a party in the suit  originally, but he was subsequently impleaded and  brought on record as the 6th defendant.         The 1st defendant sold  his 1/5th share to the 6th  defendant by a sale deed dated 16.5.1975.  The 4th  defendant also  sold his 1/5th share to the 6th defendant   by another sale deed dated  18.5.1975.  In fact, these  sale deeds were executed prior to the passing of the   final  decree for partition.  After the final decree for  partition, the plaintiffs also sold their 1/5th share to the  6th defendant by a sale deed dated 16.2.1976 and soon  thereafter the 3rd defendant also sold his 1/5th share in  the suit  property to the 6th defendant by a sale deed

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dated 3.3.1976.  By virtue of the said conveyances, the  6th defendant became the owner of a 4/5th share in the  suit property.  The 2nd defendant did not, however, sell  his 1/5th share  in the suit property to the 6th defendant  despite the  direction given in the final decree dated  1.12.1975.  The 1st and 4th defendants, without filing  execution petition for obtaining sale deed pursuant to  the final decree, assigned their interest in the final  decree in favour of the 6th defendant on 25.1.1984.   After the said assignment, the 6th defendant filed  I.A.No.10085/1987 praying for engrossing the final  decree so that  the  execution petition could be filed for  executing  the final decree.  The said I.A. was allowed  on 23.2.1987  and the delay in depositing the required   stamp was condoned.         Subsequently, the 6th defendant filed execution  petition in December, 1990, beyond 12 years from the  date of the final decree for execution of the decree.   The said execution petition was filed  against  the 2nd  defendant/judgment debtor alone since all the other  co-sharers had transferred their respective  interests in  the suit property in favour  of the 6th defendant.  By  Order dated 3.9.1981, the said execution application   was rejected on ground of  limitation in view of the  period prescribed under Article 136 of the  Limitation  Act.         The 6th defendant thereafter filed a  Civil Revision  Petition No.711/1993 against the said order of rejection  making the 2nd defendant, V. Hutcheswaran,   a party  in the  execution petition.  The said respondent filed   three separate  Civil Revision Petitions  namely, 4,5  and 7 of 1995   against the common  Order dated  25.5.1992 whereby certain directions had been given  regarding collection of rents by  the advocate receiver  and the deposit thereof  with the 6th defendant in  respect of his 4/5th share in the suit property.  As  indicated hereinabove, all the said applications were  taken up for hearing and disposal together by the  learned  single Judge of the Madras High Court  who by  his judgment and order dated 22.11.1995 allowed the  revision application filed by the 6th defendant upon  holding that the executing court  had erred in rejecting   the execution application filed by the said 6th  defendant.  The Order dated  3.9.1991 rejecting the  execution application was set aside and the matter was  remanded to the executing court for dealing with  the  same on merits.  Simultaneously, the three other Civil  Revision Petitions filed by the 2nd defendant,  V.  Hutcheswaran, were  dismissed with costs.   The present Special Leave Petitions are directed   against the said judgment and order of the learned  single Judge of the Madras  High Court dated  22.11.1995.   As will appear from the record, leave was duly  granted on 2.11.2001 and the two appeals filed by the  2nd defendant, V. Hutcheswaran, were posted for final  hearing.    During the course of the hearing, an  affidavit filed on behalf of the 6th defendant in SLP  (Civil) No.15893-94/96 was brought to our notice by  learned counsel for the respondent and it was pointed  out therefrom that  after the  judgment was delivered  in Civil Revision Petition No.711/1993, the 6th  defendant, as the decree holder, filed a petition,  being  E.P.No. 5430/1995, for a direction upon the 2nd  defendant/judgment debtor for sale of his remaining

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1/5th share in the suit property.  The same   was taken  up for hearing and allowed by the Executing Court.    The judgment debtor challenged the said order before  the  Addl.Judge, City Civil Court, Madras, by way of  C.M.A.No.168/1996, which was also allowed.  The order  of the 1st appellate court  was, however, set aside  in  revision  by the High Court  in C.R.P.No.305/1997 and  the order  passed by the executing court in  E.P.No.5430/1995 was restored.  A Special Leave  Petition filed by the 2nd defendant/judgment debtor  against the said order  in revision was subsequently  withdrawn on 31.8.1998.  Consequently, a sale deed in  respect of the 1/5th share of the 2nd  defendant/judgment debtor was executed and  registered in favour of the  6th defendant/decree holder  on 5.2.1999 before the Sub Registrar, Sowcarpet,  Chennai.  By virtue of  the said sale deed, the 6th  defendant/decree holder became the owner of the  entire suit property and prayed for delivery of   possession of the property in occupation of the 2nd  defendant/judgment debtor before the City Civil Court,  Chennai.   Pursuant to the orders passed by the   said  court possession of the  said portion of  the property  in  occupation of the 2nd defendant/judgment debtor was  delivered on 12.4.1999 to the 6th defendant/decree  holder, who is the respondent no.1 in the  instant  Appeal, with the help of the court bailiff and the police  authorities.                             In view of the said development, a rejoinder  affidavit  appears to have been filed on behalf of  the  2nd defendant/judgment debtor  in the appeals on  26.10.2001,  inter alia  for restitution to the position he  was in  before  the filing of the execution application.   The said application was,  in fact,  taken up for hearing  along with  the appeals.         Learned counsel appearing for the appellant  submitted that the learned single Judge of the Madras  High Court had erred in  allowing the application filed   by the decree holder, being C.R.P.No.711/1993, under  Section 115 of the Code of Civil Procedure, in  view of a  recent judgment of this Court in Hameed Joharan (D)   & Ors.  vs. Abdul Salam (D) by LRs. & Ors., (2001) 7  SCC 573,  in which  the same point relating to   enforceability and/or  executability of a final decree in a  partition suit was under consideration and it was held  that the period of limitation commenced from the date  of the decree and not from the date on which the   certified copy  was made available.         Learned counsel  further submitted  that on the  strength of the  said analogy, the order passed by the   learned single Judge condoning the delay in filing  of  the execution petition was erroneous and was liable to  be set aside and consequently the 2nd  defendant/judgment debtor   was entitled to  restitution.         It was also urged that on account of the error  committed by the court,  the  parties to  a litigation   should not be made to suffer and since the 2nd  defendant/judgment debtor/appellant had been   dispossessed from the suit property by  an order of the  court, he was entitled to restitution on account of the   maxim actus curiae neminem gravabit   (an act of the  court shall prejudice no man).         In support of the said proposition, the learned  counsel referred to and relied on a  decision of this

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Court in  Prasanna Kumar Roy Karmakar vs.  State of  West Bengal & Ors., (1996) 3 SCC 403, wherein  the  said principle had been    discussed and explained.   Learned counsel urged that in the interest  of justice an  order for restitution should be made in favour of the 2nd  defendant/judgment debtor \026 appellant herein.         The submissions made on behalf of the appellant  were strenuously opposed on  behalf of the   respondent/decree holder and it was submitted that it  was because of the recalcitrant  attitude of the 2nd  defendant that the  respondent/decree holder    had to  take recourse to separate proceedings in the execution  case for the 1/5th share  of the 2nd defendant in the suit  property to be transferred to him.  It was submitted  that  the delay  in applying  for execution of  the final  decree was caused mainly  by the acts of the 2nd  defendant/judgment debtor, the appellant.         It was also urged that  since the decree  holder/respondent had become   the  full owner of the  suit property, the question of restitution would not  arise inasmuch as  the judgment debtor/appellant  did  not retain any  interest in the suit property  after his  share  had been conveyed to the decree  holder/respondent.  It was    urged that the entire  submissions made on behalf of the judgment  debtor/appellant was an exercise in futility and  deserved to be rejected.         Having considered the submissions made on  behalf of the respective parties and having gone  through the materials on record,  we are inclined to  accept the submissions made on behalf of  the  decree  holder/respondent.  Having withdrawn the Special  Leave Petition which had been filed  by him (appellant)  against the order by which  his share in the suit  property had been conveyed to the decree  holder/respondent, the question of  restitution to the  position prior to the  execution  of the decree does not  and/or cannot arise.  In our view, the order passed by  the  Madras High Court in  C.R.P.No.305/1997 having  become final  with the withdrawal of  SLP ) No.  13522/1998, it is no longer open to the judgment  debtor/appellant to pray for restitution notwithstanding  the decision in the  case of Hameed Joharan   or that   of Prasanna Kumar Roy Karmakar  (supra).  The fact  situation is such that it does not call for any  interference with the impugned order passed by the  High Court at Madras and the instant appeals must,  therefore,  fail and  are dismissed.         There will, however, be no order as to costs.