IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 25.10.2021

Pronounced on : 02.02.2022

C O R A M

THE HONOURABLE Mrs. JUSTICE [Link]

Second Appeal No.750 of 2021

[Link]
[Link] .. Appellants/Respondents/
Respondents & 3rd Parties

-vs-
[Link]

[Link]

[Link] .. Respondents/Appellants 2 to 4/
Petitioner 2 to 4
(LRs of the Auction Purchasers)

Prayer : Second Appeal is filed against the judgment and

decree, dated 28.04.2021, made in [Link].15 of 2017 on the file
of Subordinate Court, Mettupalayam, reversing the fair and
final order, dated 14.09.2017, in E..[Link].26 of 2016 in
[Link].20 of 1995 in EP No.310 of 1995 in [Link].875 of 1978,
passed by the District Munsif cum Judicial Magistrate,
Mettupalayam.

For Appellants .. [Link]

For Respondents .. [Link]

JUDGMENT

This Second Appeal is preferred against the judgment and

decree, dated 28.04.2021, made in [Link].15 of 2017 on the file
of Subordinate Court, Mettupalayam, reversing the fair and
final order, dated 14.09.2017, in E..[Link].26 of 2016 in
[Link].20 of 1995 in EP No.310 of 1995 passed by the District
Munsif, Mettupalayam.

2. Facts briefly narrated and necessary for disposal of

this Second Appeal are as follows:

[Link]
 2.1. As per the sale deed, dated 19.11.1964, one Devanna
Gounder purchased the land land belonging to Ranga Gounder. The
said Devanna Gounder, along with one Chinna Gounder, borrowed
Rs.5800/- as loan from one [Link] for interest at the rate
of 12% per annum and executed a promissory note on 13.11.1975.
Since the said loan amount was defaulted, a suit in [Link].875
of 1978 was filed by [Link] against both Devanna Gounder
and Chinna Gounder and the same was decreed ex-parte on
31.10.1978, since they had not contested. Since the suit amount
was not repaid, Rangasamy, in order to execute the decree,
filed [Link].310 of 1981 for selling the suit property. As per
the same, the suit property was brought for sale on 20.06.1983
and it was purchased by one [Link] for a valuable
consideration of Rs.20,005/-. Accordingly, a certificate was
given to [Link] on 20.01.1984. Since Rangaraj was the owner
of the property as per the Court auction, he filed a petition to
settle the same in his favour and also obtained an order. Since
Rangaraj and his legal heirs are the owners of the property, the
suit in [Link].130 of 1985 filed for partition by sons of
Devanna Gounder was dismissed on 17.08.1989 and the appeal filed
by them in [Link].912/1989 was also dismissed. In the meanwhile,
after the death of Devanna Gounder, the legal heirs of Devanna
Gounder sold the suit property to third parties viz., defendants
4 and 5. Since the suit property belonged to the legal heirs of
Rangaraj, after the death of the said Rangaraj, they filed
another suit in [Link].414 of 2005, seeking for declaration and
settlement.

2.2. Before the trial Court, the defendants 4 and 5,

stated that the suit property has not been valued properly; the
burden of proof lies on the plaintiffs to prove their share and
the suit property is the self acquired property of Devanna
Gounder. Since 1995, the defendants 4 and 5 and the 2 nd
defendant are in possession and enjoyment of the suit property
and they have established their property by obtaining loan for a
sum of Rs.16 lakhs from a bank and necessary tax has also been
paid by the defendants. Patta, Chitta and Adangal stood in the
name of the wife of the 4 th defendant and the 5th defendant.
Since the suit was barred by limitation, they prayed for
dismissal of the suit.

3. On considering the pleadings, the trial Court framed

the following issues for consideration :
1. Whether the sale executed in favour of
defendants 4 and 5 is valid ?
2. Whether the suit property is in possession
of the defendants 4 and 5 ?

[Link]
 3. Whether the plaintiffs are the legal heirs
of [Link] and they are entitled for settlement?
4. For what relief?

4. Before the trial Court, on the side of the plaintiffs,

one witness was examined as P.W.1 and 11 exhibits were marked.
On the side of the defendants, one witness was examined and 17
exhibits were marked.

5. After considering the oral and documentary evidence,

the trial Court dismissed the suit on the ground that though the
suit property was purchased by the husband of the plaintiffs
through Court auction, possession has not been taken. It is the
further finding of the trial Court that the plaintiffs ought to
have approached the competent Court within a period of 12 years
from the date of purchase. However, since the possession has not
been taken, on the ground of limitation, the trial Court
dismissed the suit, against which, no appeal was preferred.

6. However, the plaintiffs filed [Link].26 of 2016 for

removal of obstruction recorded in [Link].39 of 2009 and for
delivery of possession under Order XXI Rule 95 r/w Section 151
of the Code of Civil Procedure. The said petition came to be
dismissed on the ground that the plaintiffs should prefer an
appeal, against which, the plaintiffs preferred [Link].15 of
2017 before the first appellate Court.

7. The first appellate Court framed the following

substantial questions of law:
1. Whether the non-preferring of appeal over
the order passed in [Link].39/2009 is fatal to the
case of the appellants herein ?
2. Whether the order passed in EA No.26/16 in
EA No.20/1995 in EP 310/1995 by District Munsif of
Mettupalayam is to be interfered on the ground of
mistaken appreciation of facts relating to CRP 2005 of
1999 ?

8. On considering the oral and documentary evidence, the

first appellate Court allowed the appeal in favour of the
plaintiffs and held that the theory of res judicata is not
applicable to EA No.26/2016 and EA No.20/1995 is not barred by
limitation and that the order of this High Court in
[Link].2005 of 1999 is binding upon the respondents, against
which, the defendants are before this Court with this Second
Appeal.
9. Heard the learned counsel for the appellants and the

[Link]
 learned counsel for the respondents.

10. The following Substantial Questions of law arise for

consideration in this Second Appeal :

(1) Whether the first appellate Court was right

in holding that C.R.P.(NPD) No.2005 of 1999 is binding
on the parties when the very Order was pronounced after
the petitioner, [Link] Gounder, had died without
impleading his legal representatives ?
(2) Whether the decision in [Link].414 of 2005
operates as res judicata to [Link].26 of 2016 ?
(3) Whether the first appellate Court was right
in holding that the Order for delivery of property to
the respondents / auction purchasers in Execution
Proceedings preceded the sale made to the appellants /
third parties by [Link] Gounder ?
(4) Whether the non-registration of sale
certificate will give a right of ownership to the
respondents / auction purchasers ?
(5) Whether the respondents / auction
purchasers, who have failed in the suit for declaration
of title as against the appellants / third parties, be
entitled to possession by way of an execution of
decree, to which the appellants are not parties ?

11. At the outset, the suit in [Link].875 of 1978 on the

file of District Munsif Court, Coimbatore, was filed by one
[Link] against one Devanna Gounder and Chinnaiah Gounder
for recovery of money and the said suit was decreed ex parte.
Thereafter, an Execution Petition was filed vide [Link].310 of
1981, in which, sale was ordered and the suit property was put
to auction. In the Court auction on 20.06.1983, one [Link],
the father of the respondents herein, purchased the property for
a sum of Rs.20,005/- and on 20.01.1984, the sale was confirmed.
Thereafter, within a period of one year i.e., on 07.12.1984, the
auction purchaser filed an application in [Link].2244 of 1984
for delivery of possession. On 07.02.1985, delivery of
possession was ordered in the said application. On 09.04.1985,
Devanna Gounder produced a Memo before the lower Court, stating
that in [Link].155 of 1985 in [Link].130 of 1985, which was the
suit filed by his sons, an order of temporary injunction was
granted, restraining the auction purchaser from taking delivery
of possession. Therefore, an order was passed on 09.04.1985
closing [Link].2244 of 1984, for delivery of possession
temporarily, in view of the order of interim injunction. As
such, the order passed in [Link].2244 of 1984 could not be

[Link]
 executed. Thereafter, [Link].130 of 1985, which was filed by
the sons of the judgment debtor against the auction purchaser,
for partition, was dismissed on 17.08.1989 on merits and the
interim order of injunction was also vacated. Pursuant to that,
within a week, on 23.08.1989, the father of the respondents
herein / auction purchaser, filed an application in [Link].951
of 1989 for delivery of possession and the said application was
transferred to the file of District Munsif, Mettupalayam, and
renumbered as [Link].20 of 1995. The order of delivery of
possession, dated 07.02.1985, could not be proceeded with,
merely because of the temporary closure of the application in
[Link].2244 of 1984, following the interim order of injunction
in the original suit in [Link].130 of 1985. Since the said suit
itself was dismissed, the second Execution Application was
filed. There was no impediment in filing the said application,
as the original Execution Application was filed within a period
of one year and, therefore, it was well within the time and it
was only revival of the earlier application. Finally, [Link].20
of 1995 filed by the auction purchaser for delivery of
possession was ordered on 09.04.1999.

12. In [Link].39 of 2009, which was filed by the

appellants against the order in [Link].20 of 1995, the
appellants admit that they purchased the suit property on
12.06.1995. However, in this case, the Court auction was
conducted on 20.06.1983 and the sale was confirmed in favour of
[Link] on 20.01.1984. Even after the confirmation of the
sale of the property, the appellants filed the above E.A. to
record obstruction. It is very important to note that the
appellants, knowing pretty well that the suit property has been
put to Court auction and the same is pending delivery of
possession, ventured to purchase the said property, ignoring the
consequences. From this, it is ostensible that the appellants
are pendente lite purchasers of the property.

13. It is also seen from the records that after the suit
property was attached by the Court, the judgment debtors filed
applications after applications for adjournment of sale and
obstructed the sale to be proceeded with. Further, even after
the confirmation of sale on 20.01.1984, the judgment debtors did
not stop with that and they continued with the same attitude by
obstructing the delivery proceedings, and, they, in turn, sold
the suit property to the appellants herein, even during the
pendency of the delivery of possession to the auction purchaser.
Thereafter, the appellants stepped into the shoes of the
judgment debtors, and they also continued to drag on the
proceedings infinitely, by adopting dilatory tactics to prevent

[Link]
 the auction purchaser and the decree holder from enjoying the
proceeds of sale and the fruits of the decree for over four
decades in execution proceedings. Such an attitude of the
appellants is to be highly deprecated and condemned.

14. This is a manifest case of abuse of process of Court.

The suit in [Link].875 of 1978 was decreed as early as in the
year 1981. The Execution Petition vide [Link].310 of 1981 was
filed in the year 1981. The sale was effected even in the year
1983 and was confirmed in the year 1984. While that being so,
the judgment debtor set up his own sons to file the suit
[Link].130 of 1985 for partition of the suit property and they
managed to obtain an interim order of injunction in [Link].155
of 1985, thereby, restraining the Court auction purchaser, who
was the father of the respondents herein, from taking delivery
of possession. It is pertinent to note that at the time of
obtaining the interim order in [Link].155 of 1985 in [Link].130
of 1985, delivery of possession was already ordered in
[Link].2244 of 1984 in [Link].310 of 1981 in [Link].875 of 1978.
Since the suit in [Link].130 of 1985 was dismissed, the said
interim injunction was vacated. Thereafter, the respondents
herein, as the legal heirs of the auction purchaser, filed
[Link].20 of 1995 for delivery of possession and it was ordered.
Against the said order passed in [Link].20 of 1995 by the trial
Court, the judgment debtor filed C.R.P.(NPD) No.2005 of 1999 on
the file of this Court and this Court dismissed the said Civil
Revision Petition, holding that it was only to harass the Court
auction purchaser. By not ending with that, the appellants /
third party purchasers, filed [Link].39 of 2009 to record
obstruction in the delivery of possession and it was allowed by
the trial Court. Aggrieved over that, the respondents herein
preferred [Link].26 of 2016 to remove the obstruction recorded
in [Link].39 of 2009, which was dismissed, against which, the
respondents preferred [Link].15 of 2017 and it was allowed.
Hence, this Second Appeal, at the instance of the appellants,
who are the third party purchasers.

15. If it be the contention of the learned counsel for

the appellants that as against the order passed in [Link].39 of
2009 only appeal lies to the appellate Court, the same yardstick
applies to the appellants as well with regard to the order
passed in [Link].20 of 1995, which means, as against the order
passed in [Link].20 of 1995, the appellants ought to have filed
appeal, instead of filing [Link].39 of 2009. Further, in this
connection, it is also significant to note that the trial Court,
while allowing the application filed by the appellants in
[Link].39 of 2009, has observed in Paragraph 8 of its order that

[Link]
 the merits of the claim of both the parties shall be decided in
detail in the proceeding the respondents 2 to 4 initiate to
remove the obstruction. The relevant portion of the said order
is necessary, which reads as follows :
''8. The merits of the claim of both the
parties shall be decided in detail in the proceeding
the respondents 2 to 4 may initiate to remove the
obstruction. The point is answered accordingly.''

16. Following the said order of the trial Court, when the
respondents herein filed an application in [Link].26 of 2016
against the order in [Link].39 of 2009 to remove the
obstruction, the trial Court, instead of deciding the
application [Link].26 of 2016 on merits, as stated by itself, as
above, fell in utter error in dismissing the said application,
holding that the applicants therein/respondents herein should
prefer appeal before the appellate forum to work out their
remedy against the order passed by the said Court in [Link].39
of 2009. The relevant portion of the said order reads as under :

''19. In this case, the petitioner who was

unsuccessful respondent in EA N.39 of 2009 should
prefer appeal against the order passed by this court
in execution application [Link].39 of 2009 (sic). It
is pertinent to note down from the records the
petitioners did not prefer any appeal in [Link].39 of
2009 and after expiry of limitation period this
petitioner filed the petition under Order 21 Rule 95
of CPC to remove the obstruction. Hence, it is
decided that the petitioners should prefer appeal
before the appellate forum to work out their remedy
against the order passed by this Court in EA No.39 of
2009. Instead of preferring appeal, the petitioners
filed petition under Order 21 Rule 95 of CPC for
removal of obstruction is not maintainable under
law.''
17. Moreover, recording of obstruction is only an
administrative act and it will not end up the proceedings once
for all. Hence, filing of the application in [Link].26 of 2016
under Order 21 Rule 95 of CPC is the proper proceeding,
initiated by the auction purchasers, who are the respondents
herein. Hence, the decision in [Link].39 of 2009 will not act as
a res judicata for the proceeding in [Link].26 of 2016.
Therefore, the contention of the learned counsel for the
appellants in this regard does not merit acceptance.

18. Order XXI Rule 95 of Civil Procedure Code deals with

[Link]
 delivery of property in occupation of judgment debtor. According
to this Rule, when the immovable property sold is in the
occupancy of the judgment debtor or of some person on his behalf
or of some person claiming under a title created by the judgment
debtor subsequently to the attachment of property and a
certificate in respect thereof has been granted under Rule 94,
the Court shall, on the application of the auction purchaser,
order the delivery to be made by putting such purchaser or any
person whom he may appoint to receive delivery on his behalf in
possession of the property, and, if need be, by removing any
person, who refuses to vacate the same. This is what has
happened in this case. However, in this case, the appellants are
claiming title to the property through Devanna Gounder, who is
the judgment debtor. Admittedly, they are the pendente lite
purchasers, which means, they purchased the property from
Devanna Gounder in the year 1995 after the order of confirmation
of sale on 20.01.1984 and delivery to auction purchaser was
made in [Link].20 of 1995. When the facts remain thus, the
appellants continued to obstruct the execution proceedings, by
initiating multiplicity of proceedings, when they are not
entitled to do so. Therefore, the said act of the appellants
also amounts to abuse of process of law.

19. With regard to the contention that the decision in

[Link].414 of 2005 operates as res judicata to [Link].26 of
2016, it is to be stated that the issue in question is to be
decided only on merits of the execution proceedings and the
decision in some other dismissed suit for declaration of
ownership will not bind the claim for possession through
execution proceedings by auction purchasers in [Link].20 of
1995. Non-preferring of appeal over the dismissed suit in
[Link].414 of 2005 is also not fatal to the present case. As
such, the said decision in [Link].414 of 2005 will not operate
as res judicata, as the issue for possession is to be decided
only in execution proceedings.

20. Adverting to the contention that the decision in

C.R.P.(NPD) No.2005 of 1999, dated 10.09.2013, of this High
Court will not bind the appellants as they are not parties
thereto, it has to be stated that the appellants herein are
purchasers from Devanna Gounder, who is the revision petitioner
therein, and also who is the judgment debtor, in the year 1995,
after delivery of possession was ordered on 07.02.1985, and
also, as already stated above, in view of Order XXI Rule 95 CPC,
the order in the said C.R.P. is binding on the appellants.

21. It is an old saying that the difficulties of the

[Link]
 litigant in India begin when he has obtained a decree. This
evil was noticed as far back in 1872 by the Privy Council in
relation to the difficulties faced by the decree holder in
execution of the decree. Even after more than a century and a
half, there has been no improvement and still the decree holder
faces the same problem what was being faced in the past. A
litigant coming to Court seeking relief is not interested in
receiving a paper decree when he succeeds in establishing his
case. What he or she primarily wants from the Court of Justice
is the relief and, if it is a money decree, he/she wants that
money what he/she is entitled for in terms of the decree, and
must be satisfied by the judgment debtor at the earliest
possible without fail, keeping in view the reasonable
restrictions/rights, which are available to the judgment debtor
under the provisions of the statute or the Code, as the case may
be. The instant case is a live illustration of the situation, as
the decree holder is yet to enjoy the fruits of the decree even
after a lapse of nearly four-and-a-half decades i.e., in a
litigation of the year 1978 in [Link].875 of 1978. All the
attempts made by the judgment debtor and his successors for the
past four-and-a-half decades to stall the execution of a civil
decree are hereby despised.

22. In view of the elaborate discussion and for the

reasons stated as above, this Court deems it fit to dismiss
this Second Appeal with appropriate costs. Accordingly, this
Second Appeal is dismissed with costs of Rs.10,000/-, to be
payable by the appellants to the respondents, as one unit,
within a period of one month from the date of receipt of a copy
of this order. As such, the judgment and decree, dated
28.04.2021, passed in [Link].15 of 2017 are confirmed. If the
amount is not paid by the appellants to the respondents within
the time stipulated as above, it is open for the respondents to
initiate revenue recovery proceedings against the appellants
through the District Collector concerned. Consequently, the
connected [Link].14715 and 14717 of 2021 also stand
dismissed.
Sd/-
Assistant Registrar(CS-I)

//True Copy//

Sub Assistant Registrar

RR/dixit

[Link]
 To

1. The Subordinate Court,

Mettupalayam.

2. The District Munsif cum Judicial Magistrate,

Mettupalayam.

Copy To

The Section Officer,

V.R. Section, High Court,
Madras.

+2cc to [Link], Advocate [Link].6280

+1cc to [Link], Advocate [Link].6248

[Link].750 / 2021

SRA(CO)
GN(25/02/2022)

[Link]