MUMTAJ BEGUM Vs. MUKKAN CHAND BODRA

JUDGEMENT

(1.) THE revision petitioner is the third party and has filed this revision against the dismissal of the petition in E. A. No. 265 of 2001 in E. P. No. 34 of 2001 in O. S. No. 70 of 1987 on the file of Additional Sub Court, Myladuthurai as per order dated 29. 08. 2003. The said E. A. was filed to dismiss the execution petition for delivery of possession on the basis of the ex parte decree in the suit.

(2.) THE revision petitioner claims that she is one of the daughters of Mohammed Salih, the first defendant in the suit and after his death, she was not made as a party in the suit, which was filed for specific performance of an agreement for sale against Mohammed Salih, Ummal Bajria and Mohamuda Bivi, the defendants and which was decreed ex parte on 12. 07. 1990. The revision petitioner came to know that the legal representatives of the third defendant Mohamuda Bivi have been added in E. P. No. 28 of 1991 as per the order in E. A. No. 379 of 1991 as respondents 4 and 5. The revision petitioner also came to know that respondents 6 to 12 have been added as the legal representatives of the first defendant Mohammed Salih in E. P. No. 28 of 1991 as per the order in E. A. No. 52 of 1994. The sale deed was executed in E. P. No. 44 of 1996. During the pendency of the suit, the third defendant Mohamuda Bivi died on 7. 3. 1990 and by suppressing the same, ex parte decree was obtained on 12. 07. 1990. Inasmuch as the legal representatives of Mohamuda Bivi have not been added within ninety days, the suit against the third defendant Mohamuda Bivi was abated and therefore, the ex parte decree dated 12. 07. 1990 is not valid in law. Respondents 2, 4, 5 and 10 to 12 were given up at the execution stage. By speaking all these, the revision petitioner filed the petition in E. A. No. 265 of 2001 under Section 47 of Civil Procedure Code, which is the subject matter of this revision.

(3.) THE petition was opposed by the first respondent/ decree holder. The suit was filed by him for specific performance of agreement for sale as per the agreement entered into between him and the first defendant. A sum of Rs. 50,000/- was paid as advance and the balance amount of Rs. 25,000/- out of the entire sale consideration of Rs. 75,000/- was deposited in the Court. The suit was decreed and the execution petition was filed only after the death of the first defendant and his legal representatives were added as respondents 6 to 12, who contested the execution petition, in which no ground was made that the revision petitioner was not made as a party and she is also one of the daughters of Mohammed Salih. Thereafter, a sale deed was executed on 28. 02. 1997 by the Executing Court. All the proceedings were resisted by respondents 2 to 5. Now the execution petition was filed for delivery of possession, in which also respondents 2 to 5 have not made any objection for not impleading the revision petitioner. If the revision petitioner is also one of the legal representatives, at best, she is only entitled to her share in the balance sale consideration viz. , Rs. 25,000/- deposited in the Court, as the first defendant had already received Rs. 50,000/- as advance out of the sale consideration of Rs. 75,000/- at the time of execution of the agreement for sale.