TAHERA SAYEED Vs. M SHANMUGAM

JUDGEMENT

(1.) The petitioner is possessed of the house bearing No. 10-2-287/1 in A. C. Guards, Santhinagar, Hyderabad which respondent 3, Periaswamy purchased in two portions, A portion in the name of his wife and daughter (respondents 4 and 5) and B portion in his name, under two sale-deeds dated 31/03/1978 and 15/07/1979, respectively. It is the case of the petitioner that the cheques issued by Periaswamy as consideration for the sale of B portion house were bounced and thus received no consideration; thereby Periaswamy played fraud on her. On demand, Periaswamy surrendered possession of the B portion under Ex. A-4 affidavit dated 4/09/1980. The petitioner laid the suit, O. S. No. 1307/80 which was renumbered as O. S. No. 306/82 in the Court of the Addl. Chief Judge, City Civil Court, Hyderabad, to declare that the sale as invalid or for specific performance. He also filed I.A. 1492/80 against Periaswamy for ad interim injunction restraining him from interfering with her possession. Interim injunction was granted and it was made absolute, which was upheld by this Court in C.M.A. 240/81 dated 29/07/1981.

(2.) While the matters stood thus, it emerges that Periaswamy purported to have executed an agreement of sale dated 30/11/1979 under Ex. B3 in respect of A and B portions, in favour of Shanmukham. For enforcement thereof, immediately, a suit C.S. 61/82 was filed in the High Court of Madras for specific performance of the properties at Hyderabad, which was decreed ex parte on 14/03/1983 under Ex. B8. Shanmukham was to deposit sale consideration in Court, but it was not done. Yet, E.P. was filed to execute the sale-deed stating that the amount was received outside the Court. In the meanwhile, T. Narasimha, respondent 2 filed application No. 2433/8 4/06/1984 in the said suit, C.S. 61/82 stating that he had purchased half share in that property from Shanmukham and a sale-deed may be executed in his favour and an order was passed thereon to that effect. Pursuant thereto, two sale-deeds were executed on August 27, 1984 by the Madras High Court, in favour of Shanmukham and T. Narasimha in respect of half share each in the house. Then E.P. No. 93/84 was filed for transmission for execution to take delivery of possession which was transferred accordingly. T. Narasimha filed E.P. 6/85, in the Court of the First Addl. Judge, City Civil Court, Hyderabad, for delivery of possession of A portion i.e. 10-2-287/1A, of an extent of 800 sq. yards or 652 sq. meters, consisting of a double-storied building, and had taken possession thereof on 11/02/1985. Subsequently, Shanmukham filed E.P. 10/85 to deliver possession of B portion i.e., 10-2-287/1B, to him. For none of the aforesaid proceedings the petitioner was made a party. Then the petitioner had objected to deliver possession of B portion when she became aware of the E.P. Thereafter he had withdrawn the E.P. and it was dismissed on 31/12/1985. In the interregnum, T. Narasimha filed E.P. 42/8 5/09/1985 to deliver possession of B portion i.e., 10-2-287/1B, by Periaswamy and two others with their address at Secunderabad. The petitioner was not, even now, made a party. He admits that he had taken possession of A portion on 16/02/1985 and he claims for B portion, on an alleged inter se agreement between him and Shanmukham. On becoming aware of this, the petitioner filed E.A. 5/85 seeking declaration

(3.) The claim of the petitioner which was ably supported by her learned counsel, Mr. M. L. Ganu is that the petitioner laid the suit to cancel the sale Ex. B-2 of her B portion property to Periaswamy since Periaswamy played fraud on her and obtained the sale-deed without payment of consideration. The interim injunction restraining Periaswamy from disturbing her possession of B portion is ultimately confirmed by this Court and is subsisting. To wriggle out therefrom, an attempt has been made by Periaswamy, in collusion with the respondent to dispossess her, and so a collusive suit was filed in Madras High Court, conferring jurisdiction under the agreement to see that the petitioner is kept under dark of the suit; obtained an ex parte decree and without depositing even a pie into Court, got two sale-deeds executed and her possession of B portion is sought to be disturbed in execution of that decree. Her right, title and interest in the property is not divested under Ex. B-2 dated 15/01/1979, the sale-deed executed in favour of Periaswamy; she still continues to be the owner of the property; she objected to her dispossession when Shanmukham laid E.P. 10/85 and he had got it dismissed as withdrawn. Narasimha filed E.P. 6/85 and had already taken possession of A por1tion of the house. Thus, T. Narasimha is not entitled to claim for B portion and Shanmukham, who claimed for B portion laid E.P. 10/85, had abandoned it. All these facts clearly give birth to confabulation between Periaswamy, Shanmukham and T. Narasimha,. This fraudulent device was adopted to deprive the petitioner of her rights in the suit, O.S. 306/82, and the order of injunction operating against Periaswamy. Therefore, the petitioner seeks declaration that she is not liable to be dispossessed. Though there is no express provision of law to enable the petitioner to claim that relief, the principle underlying O. 21, R. 97 read with S. 151, Civil P.C., 1908, for short, "the Code", could be taken aid of. The enquiry is jurisdictional fact but the Court below committed error of jurisdiction in dismissing the application of the petitioner. Sri Ramachandra Reddy, learned counsel for T. Narasimha has traversed these contentions contending that T. Narasimha obtained a lawful decree; execution thereof is not an injury within the meaning of O. 39, R. 1(c) of the Code, the relief in the garb of O. 21, R. 97 is in disregard of O. 39, R. 1(c) and cannot be granted. The executing Court cannot go behind the decree and no suit was filed impeaching the decree in C. S. 61/82. Shanmukham entered into an agreement with Narasimha to sell half share in the property; he is not a party to the subsisting injunction against Periaswamy; even if the decree or the execution in C.S. 61/82 is in violation of the injunction issued by the Civil Court in O.S. 306/82, the sale is not void; therefore Narasimha is entitled to execute the decree. The petitioner has lost her title by executing a sale-deed Ex. B-2 and unless her suit is decreed, she cannot have a subsisting right or title; therefore her possession is illegal; she cannot resist possession in execution of decree and the Court rightly dismissed the application. It is also contended that the very application itself is not maintainable. There is no threat to possession against the petitioner; and only when she was actually dispossessed she can file the application under O. 21, R. 99 and she cannot file any such application on apprehended action.