RANI AND OTHERS Vs. SUNDARAM

JUDGEMENT

(1.) The above Civil Revision Petition is filed challenging the order of dismissal passed by the learned Subordinate Judge, Ooty in E.A.No.337 of 2007 in E.P.No.158 of 2005 which was an application moved by the petitioners herein under section 47 of C.P.C. to declare a decree passed in O.S.No.3 of 2000 against the father of the petitioners 2 to 5 as null and void and nonest in the eye of law and consequently, to declare the execution proceedings against the petitioners as null and void.

(2.) 1. The facts in a nutshell is that the respondent herein had filed the suit O.S.No.3 of 2000 on the file of the learned Subordinate Judge of Nilgiris, Ootacamund seeking specific performance of the agreement dated 19.11.1996 executed by the defendant/father of the petitioners 2 to 5 herein in favour of the plaintiff. It is the plaintiff's case that he had entered into this agreement under which he had agreed to purchase the suit schedule property for a total sale consideration of Rs. 1,40,000/- and a sum of Rs. 5,000/- has been paid as advance. The deceased defendant had informed the petitioner that the suit schedule property had been allotted to him under an oral partition effected between his family members. The plaintiff would submit that despite repeated demands and a legal notice dated 22.12.1997, the defendant did not come forward to execute a sale deed and on the contrary he had sent a reply denying the execution of the sale agreement. Therefore, left with no other alternative, the respondent had filed a suit. 2. 2. The sole defendant had entered appearance through counsel but had however not filed any written statement nor entered into the box to deny the case of the plaintiff/respondent herein. The suit was decreed by judgment and decree dated 30.09.2002. Thereafter, the respondent had filed E.P.No.158 of 2005 for having the sale deed executed. This application was filed on 13.12.2005. Prior to the filing of this Execution Petition, the respondent had filed E.P.No.46 of 2005 for having the sale deed executed but the same was dismissed on 01.08.2005 since the defendant/judgment debtor was no more. Thereafter, impleading the petitioners herein, the respondent had filed the above Execution Petition. In November 2007, the petitioners herein had filed an Application under section 47 of the C.P.C contending that the suit properties were ancestral properties and their deceased father did not have the right to alienate the property as it was not his self acquired property. They further contended that the sale agreement had been manipulated and fabricated and being a forged document, it was not binding on the petitioners. 2. 3. The petitioners had also contended that they had sold their respective shares in the suit schedule property to M/s.D.Murugan and D.Sivan sons of N.Dharuman even before the receipt of the notice from the Court. The respondent herein had filed a counter affidavit contending that the application was only an attempt to protract the proceedings and the petitioners who were aware of every stage of the suit had bothered to contest the same. In fact their father who had entered appearance through counsel did deem it fit to see the end of the trial. He had further reiterated that the property was the self acquired property of the deceased Bogi Gowder and an ancestral property as contended by the petitioners.

(3.) The learned Subordinate Judge dismissed the application holding that the petitioners had produced a single document to support their case that the suit schedule property was an ancestral property. Further, the learned Subordinate Judge had held that the petitioner father, despite engaging counsel, had contested the suit and the petitioners who were living along with their father cannot feign ignorance about the proceedings. The learned Subordinate judge therefore dismissed the petition. Aggrieved by this order the petitioners are before this Court.