CHINNAMMAL Vs. KUPPUSAMY

JUDGEMENT

(1.) THE plaintiffs 2 to 6 in O. S. No. 841 of 1981 on the file of the Court of District Munsif, Thiruchengode, are the revision petitioners in this Civil Revision Petition. This revision is directed against the dismissal of R. E. P. No. 59 of 1992 on the file of the District Munsif, Thiruchengode.

(2.) THE revision petitioners, viz. , plaintiffs 2 to 6, are the widow, daughter and sons of deceased first plaintiff Perianna Nadar. Perianna Nadar filed suit in O. S. No. 841 of 1981 against the respondent/defendant for specific performance of contract of sale pursuant to the agreement dated 15. 7. 1978 entered into between them, after causing lawyer's notice dated 04. 02. 1979 to which no reply was sent by the defendant. Though it appears that the defendant resisted the suit by filing written statement, he remained ex parte at the time of trial, which resulted in ex parte decree dated 11. 02. 1983. Originally, the suit was filed in O. S. No. 661 of 1979 on the file of the Sub-Court, Salem , which was transferred to the Court of District Munsif, Thiruchengode, and renumbered as O. S. No. 841 of 1981. During the pendency of the suit, Kondappa naicker and his wife Dhanalakshmi filed an application to get themselves impleaded as parties claiming that they purchased the suit property of 1 acre and 80 cents in Survey No. 189/1 from the respondent herein on 25. 4. 1980. It appears that the said petition was dismissed and thereafter, the suit was decreed ex parte as stated above. THE dismissal of the said petition in the unnumbered application of the year 1983 was challenged in this court in C. R. P. No. 1219 of 1983 and the revision petition was dismissed with liberty to the revision petitioners to file a separate suit to vindicate their rights and substantiate their claim that the said suit is of collusive character. THE revision was dismissed on 09. 10. 1985 and pursuant to the said order passed by this court, Kondappa Naicker and his wife Dhanalakshmi filed suit in O. S. No. 325 of 1986 on the file of Subordinate Judge, Sankari, for declaration and injunction against the respondent herein and Perianna Nadar and 9 others in which the ex parte decree was passed on 19. 9. 1990. Perianna Nadar filed a petition to set aside the ex parte decree in O. S. No. 325 of 1986 with petition to condone delay of 899 days, which were dismissed by this Court on 27. 8. 1993. Special Leave petition in S. L. P. (Civil) No. 20010 of 1993 filed in supreme Court challenging the order of this Court dated 27. 8. 1993 was also dismissed on 03. 01. 1994. In the meantime, Perianna Nadar filed suit in O. S. No. 515 of 1988 in the Court of district Munsif, Thiruchengode, and on his death, the same was continued by the revision petitioners, claiming as his legal representatives, against Kondappa naicker and his wife Dhanalakshmi and 9 others for permanent injunction that the defendants in that suit should not put up construction in the suit property, viz, 1 acre and 80 cents in Survey No. 189/1, Thokkavadi village, thirchengode Taluk. THE suit, after contest, was dismissed on 17. 4. 2000. No appeal was filed against the dismissal of the said suit. In the meantime, perianna Nadar filed R. E. P. No. 59 of 1992 to execute the decree passed in his favour in O. S. No. 841 of 1981 and on his death, the revision petitioners were impleaded as his legal representatives. THE R. E. P. was contested by the respondent herein that the decree in O. S. No. 841 of 1981 is not executable. Since the suit in O. S. No. 325 of 1986 filed by Kondappa Naicker and his wife dhanalakshmi was decreed declaring that the plaintiffs in that suit are entitled to the suit property and permanent injunction was granted restraining the respondent Kuppusamy herein and Perianna Nadar, who originally instituted the suit in O. S. No. 841 of 1981, and 10 others from disturbing his possession of the suit property and as such, on the basis of the decree in O. S. No. 841 of 1981, the decree holder is not entitled for execution of the registered sale deed in respect of the suit property in Survey No. 189/1 Thokkavadi Village, thiruchengode Taluk from the respondent.

(3.) AS regards non-impleading of Kondappa Naicker and dhanalakshmi, who filed O. S. No. 325 of 1986, in R. E. P. No. 59 of 1992 filed by the deceased Perianna Nadar, now continued by the revision petitioners as his legal representatives, the learned counsel submitted that they being unnecessary parties and since no decree was obtained against them, they have not been made as parties in the said R. E. P. In support of such contention, the learned counsel for the revision petitioners relied on the decision of this court in RAGHAVAN ALIAS BHAGAVATHIKANNU PILLAI AND 6 OTHERS (1991 (1) L. W. 84. The learned counsel also relied on the decision of this Court in K. PONNAMBALAM vs. SUBDRA DEVI (1994 (1) M. L. J. 809): "purchaser of the suit land by means of a sale deed of later date is not a necessary or proper party to execution proceedings. Maxims. Nemodat qua non habit. "