G. Muthuvelu Pillai (dead) by Lrs. Vs. Hazarath Syed Sha Mian Sakkaf Sahib Khadiri Thaikal (dead) by Lrs.
EmailAppeal: Civil Appeal No.3127 of 1979
Petitioner: G. Muthuvelu Pillai (dead) by Lrs.
Respondent: Hazarath Syed Sha Mian Sakkaf Sahib Khadiri Thaikal (dead) by Lrs. & Ors.
Apeal: Civil Appeal No.3127 of 1979
Judges: KULDIP SINGH & N.M. KASLIWAL, JJ.
Date of Judgment: Sep 03, 1992
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O. 21, R. 35 – Execution petition for delivery of possession – Decree based on compromise – Judgment debtor-appellant opposing the petition and seeking protection of Madras City Tenant’s (Protection) Act, 1921 – Case involved purchase of super structure and rights of parties were concluded by the compromise – While upholding the decision of the High Court, held that there was no equity or justice in favour of the appellant.
JUDGEMENT:
KASLIWAL, J. :
1. Civil Appeal Nos.491-92/80, Civil Appeal Nos.783-784/81 and Civil Appeal Nos.10102-05/83 were tagged to be heard along with the above appeal. After hearing learned counsel for the parties in all these cases, judgment was reserved. Learned Counsel for the appellants in C.A. No.492/80 and C.A.Nos. 10103 & 10105 of 1983 informed that the matter had been compromised between the parties out of Court and as such these appeals were disposed of by an order dated 4.8.1992. After going through the record of the above appeal, we are convinced that its facts are so glaring and different that it can be dealt with separately and as such we are deciding this appeal on its own facts.
2. The High Court itself in the opening part of the impugned order has observed as under:-
“This case illustrates how very resourceful a judgment debtor could be and ingenuously set at naught the valid orders of Court, including a compromise decree. Undaunted by the adverse judgments right from 1963, the judgment debtor has been making repeated on slaughts under the umbrage of some technical plea or other and thereby has been preventing the debtor-holder from realising the fruits of the decree.”
3. The broad features of the case are that original suit No.30 of 1962 was filed by the plaintiff, Hazarath Syed Sha Mian Sakkaf Sahib Khadiri Thaikal represented by its trustee, for the recovery of the vacant possession of the suit property from defendants 1 and 2 after removing the superstructure put up thereon. G. Muthuvelu Pillai was the first defendant who is now dead and is represented through his legal representatives who are the appellants in the present appeal. Pending the aforesaid suit the parties entered into a compromise on 28th June, 1963. A decree was passed in favour of the plaintiff in terms of the compromise on 6.8.1963 and according to which the plaintiff was permitted to purchase the superstructure on payment of Rs.6,000/-. On appeal, the sale consideration was increased to Rs.10,000/- by the lower Appellate Court. In second appeal decided on 5.11.1968 the amount was determined as Rs.8,000/-. The plaintiff had already deposited Rs.6,000/- and for the balance Rs.2,000/- he was granted 2 months’ time. The defendants were permitted to withdraw the sum of Rs.6,000/- already deposited as well as Rs.2,000/- to be deposited only after giving possession. The plaintiff on the strength of this decree filed an Execution Petition in 1969. Certain objections were raised on behalf of the defendant judgment debtor No.1 and all those objections were dismissed right upto the High Court. While dismissing the objections the High Court in its order dated 13.11.1970 observed that the petitioner in that case (defendant judgment debtor No.1) had been set up by the other members of the family to rake up the question over again after having obtained an advantage of the amount being fixed at Rs.8,000/- by the High Court.
4. After all the above proceedings having culminated against the defendant judgment debtor, the plaintiff decree holder filed Execution Petition in 1973 under Order 21 Rule 35 CPC for delivery of possession. This Execution Petition was also opposed by the defendant judgment debtor No.1 and after having lost in all the three courts including the High Court has now come before this Court by the grant of special leave. The judgment debtor appellant was seeking the protection under Section 3 of the Madras City Tenants’ (Protection) Act, 1921 as amended by the Amending Act 16 of 1964 and made applicable to Thanjavur on 7.11.1964. The High Court held that it was a case of a simple purchase of the superstructure dehors the Act and it cannot be contended at all, that any rights still remained surviving under the Act as the rights of the parties were already concluded by a compromise dated 28.6.63. It may also be noted that the property in question is a Trust property belonging to the Thaikal. The decree was based on a compromise with a direction to the Trust to purchase the superstructure on the site. The land of the site admittedly belonged to the Trust. The appellant had himself filed an application before the High Court for extension of time to vacate the superstructure and that was dismissed so late as 29.8.1973. The plaintiff had deposited the sum of Rs.6000/- in 1963 and another Rs.2000/- in 1968. Thus, there is no equity and justice in favour of the appellant.
5. We do not find any error in the aforesaid view taken by the High Court and we find no force in this appeal and it is accordingly dismissed with costs.
1. Civil Appeal Nos.491-92/80, Civil Appeal Nos.783-784/81 and Civil Appeal Nos.10102-05/83 were tagged to be heard along with the above appeal. After hearing learned counsel for the parties in all these cases, judgment was reserved. Learned Counsel for the appellants in C.A. No.492/80 and C.A.Nos. 10103 & 10105 of 1983 informed that the matter had been compromised between the parties out of Court and as such these appeals were disposed of by an order dated 4.8.1992. After going through the record of the above appeal, we are convinced that its facts are so glaring and different that it can be dealt with separately and as such we are deciding this appeal on its own facts.
2. The High Court itself in the opening part of the impugned order has observed as under:-
“This case illustrates how very resourceful a judgment debtor could be and ingenuously set at naught the valid orders of Court, including a compromise decree. Undaunted by the adverse judgments right from 1963, the judgment debtor has been making repeated on slaughts under the umbrage of some technical plea or other and thereby has been preventing the debtor-holder from realising the fruits of the decree.”
3. The broad features of the case are that original suit No.30 of 1962 was filed by the plaintiff, Hazarath Syed Sha Mian Sakkaf Sahib Khadiri Thaikal represented by its trustee, for the recovery of the vacant possession of the suit property from defendants 1 and 2 after removing the superstructure put up thereon. G. Muthuvelu Pillai was the first defendant who is now dead and is represented through his legal representatives who are the appellants in the present appeal. Pending the aforesaid suit the parties entered into a compromise on 28th June, 1963. A decree was passed in favour of the plaintiff in terms of the compromise on 6.8.1963 and according to which the plaintiff was permitted to purchase the superstructure on payment of Rs.6,000/-. On appeal, the sale consideration was increased to Rs.10,000/- by the lower Appellate Court. In second appeal decided on 5.11.1968 the amount was determined as Rs.8,000/-. The plaintiff had already deposited Rs.6,000/- and for the balance Rs.2,000/- he was granted 2 months’ time. The defendants were permitted to withdraw the sum of Rs.6,000/- already deposited as well as Rs.2,000/- to be deposited only after giving possession. The plaintiff on the strength of this decree filed an Execution Petition in 1969. Certain objections were raised on behalf of the defendant judgment debtor No.1 and all those objections were dismissed right upto the High Court. While dismissing the objections the High Court in its order dated 13.11.1970 observed that the petitioner in that case (defendant judgment debtor No.1) had been set up by the other members of the family to rake up the question over again after having obtained an advantage of the amount being fixed at Rs.8,000/- by the High Court.
4. After all the above proceedings having culminated against the defendant judgment debtor, the plaintiff decree holder filed Execution Petition in 1973 under Order 21 Rule 35 CPC for delivery of possession. This Execution Petition was also opposed by the defendant judgment debtor No.1 and after having lost in all the three courts including the High Court has now come before this Court by the grant of special leave. The judgment debtor appellant was seeking the protection under Section 3 of the Madras City Tenants’ (Protection) Act, 1921 as amended by the Amending Act 16 of 1964 and made applicable to Thanjavur on 7.11.1964. The High Court held that it was a case of a simple purchase of the superstructure dehors the Act and it cannot be contended at all, that any rights still remained surviving under the Act as the rights of the parties were already concluded by a compromise dated 28.6.63. It may also be noted that the property in question is a Trust property belonging to the Thaikal. The decree was based on a compromise with a direction to the Trust to purchase the superstructure on the site. The land of the site admittedly belonged to the Trust. The appellant had himself filed an application before the High Court for extension of time to vacate the superstructure and that was dismissed so late as 29.8.1973. The plaintiff had deposited the sum of Rs.6000/- in 1963 and another Rs.2000/- in 1968. Thus, there is no equity and justice in favour of the appellant.
5. We do not find any error in the aforesaid view taken by the High Court and we find no force in this appeal and it is accordingly dismissed with costs.
