Saturday, 14 September 2019

Whether executing court re-open question of trusteeship in execution of decree?

 It is well-settled that
an executing court cannot travel beyond the order or decree
under execution (see Rameshwar Dass Gupta v. State of
U.P. and Another, (1996) 5 SCC 728).

In the present case, the Trial Court had already considered
the evidence on record and given a finding that the Appellant
and his uncle were the trustees of the temple. Notably,
Umapathymurthy was a party to this suit and had contested it
by filing a written statement, claiming to be the eldest son of
Sadhasivamurthy. However, at that time, he did not put forth
any objections to the heir certificate of Sadhasivamurthy, which
was considered by the Trial Court while arriving at its finding.
This judgment was confirmed by the First Appellate Court and
no further appeal was preferred by the Respondents against it.
In light of this, the findings of the Trial Court have become final,
and Umapathymurthy as well as the other Respondents are
bound by them.
By allowing them to re-open the question of trusteeship by
way of an application in an execution petition, the High Court
has gone beyond the decree to be executed and exceeded its
revisional jurisdiction under Section 115 of the CPC.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran Vs  Sebastian 

MOHAN M. SHANTANAGOUDAR, J.
Dated:SEPTEMBER 13, 2019

1. The instant appeal arises out of the order of the High
Court of Judicature at Madras dated 10.12.2007 in Civil Revision
Petition No. 1007 of 2007, setting aside the order of the City
Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 in
Execution Petition No. 1910/1992 in O.S. No. 8664/1988.
2. The brief facts from which this appeal arises are as
follows:
The suit temple properties were originally administered by
three brothers– Sadhasivamurthy, Balasundaram, and
Sundararajan (‘original owners’). Vide settlement deed dated
19.09.1947, these original owners endowed the property to the
temple. The deed also included a provision that the eldest son
of the deceased trustee would become his successor. The
genealogy of the family of the original owners is as follows:
Sadhasivamurthy Balasundaram Sundararajan
(issueless) K.S.Jaganathan
Sabapathy Umapathy Ram Gnanambal
S. Bhaskaran
(Appellant)
3. From 1987-88, three suits relating to the temple
properties were filed. Among these, O.S. No. 8664/1988 is
relevant to the instant appeal. This suit was filed on behalf of
the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant
herein) in their capacity as trustees, seeking permanent
injunction against Gnanambal and her husband, who were
tenants in the suit properties (Respondents 1-7 herein) at that
time. One Umapathymurthy (represented by Respondents 8-14
herein) was impleaded in this suit as a defendant. In his written
statement, he claimed that he was the eldest son of
Sadhasivamurthy and that he had been dispossessed from the
trusteeship of the temple by his younger brother, K.S.
Sabapathy.

4. By a common judgment dated 09.09.1991, the Trial Court
disposed of all the three suits. With respect to the relevant suit
(O.S. No. 8664/1988), it gave a finding that the Appellant
herein and his uncle, K.S. Jaganathan were the trustees of the
temple. To arrive at this finding, the Court relied on documents
indicating that the Appellant’s father, K.S. Sabapathy was the
eldest son of Sadhasivamurthy and the heir to the suit land in
terms of the settlement deed dated 19.09.1947. These included
the license issued by the Police Commissioner in 1983 showing
K.S. Sabapathy as the heir (Ex. B21), electricity card of K.S.
Sabapathy (Ex. B22), wedding invitation of Sadhasivamurthy
(Ex. B24), license issued by police department for temple
celebration (Ex. B25), and the legal heir certificate dated
31.08.1987 issued to Sadhasivamurthy by the Tahsildar (Ex.
B26). In holding that the Appellant was a trustee and passing a
decree in his favour, the Court rejected the claim of
Umapathymurthy that he was the eldest son of
Sadhasivamurthy, and consequently the trustee of the temple.
5. In first appeal, the Appellate Court confirmed the
judgment and decree of the Trial Court passed in
O.S.No.8664/1988. No further appeal was preferred. It is crucial

to note that Umapathymurthy was an appellant in the first
appeal and had contested it.
6. The decree holders filed Execution Petition No. 1910/1992,
for executing the decree obtained by them in O.S.
No.8664/1988. In this petition, the judgment debtors
(Respondents herein) filed an execution application (E.A. No.
5750/2003) under Section 47 of the Code of Civil Procedure,
1908 (‘CPC’) against the Appellant and his uncle, seeking
dismissal of the execution petition on the basis that the original
decree was vitiated by fraud. They alleged that the heir
certificate of Sadhasivamurthy furnished by the Appellant (Ex.
B26 in the Trial Court record) was falsely prepared and
suppressed the name of Umapathymurthy as the eldest son of
Sadhasivamurthy.
7. While examining this application, the executing court
observed that the judgment debtors had not objected to the
heir certificate when it was adduced before the Trial Court. In
any case, the Trial Court had not adjudicated the issue of
trusteeship solely on the basis of the heir certificate, and other
documents had been considered as well. Thus, by order dated
31.01.2007, the executing court dismissed E.A. No. 5750/2003

filed under Section 47 of the CPC as non-maintainable on the
ground that the judgment of the Trial Court had been confirmed
by the First Appellate Court after considering all relevant
evidence, and had therefore become final.
8. When a revision petition was filed against the above order,
the High Court allowed E.A. No. 5750/2003 vide the impugned
judgment. Relying on sale deeds dated 11.08.1948 and
22.06.1950 showing Umapathymurthy as the eldest son and
K.S. Sabapathy as the second minor son of Sadhasivamurthy,
the High Court concluded that Umapathymurthy qualified as
the trustee of the temple in view of the settlement deed dated
19.09.1947. Thus, K.S. Sabapathy could not have become the
trustee of the temple. In view of this finding, the High Court
went on to observe that the decree passed in the original suit
was a nullity and could not be enforced.
9. Having perused the records and the findings of the Trial
Court, we find ourselves unable to agree with the decision of
the High Court in the impugned judgment. It is well-settled that
an executing court cannot travel beyond the order or decree
under execution (see Rameshwar Dass Gupta v. State of
U.P. and Another, (1996) 5 SCC 728).

In the present case, the Trial Court had already considered
the evidence on record and given a finding that the Appellant
and his uncle were the trustees of the temple. Notably,
Umapathymurthy was a party to this suit and had contested it
by filing a written statement, claiming to be the eldest son of
Sadhasivamurthy. However, at that time, he did not put forth
any objections to the heir certificate of Sadhasivamurthy, which
was considered by the Trial Court while arriving at its finding.
This judgment was confirmed by the First Appellate Court and
no further appeal was preferred by the Respondents against it.
In light of this, the findings of the Trial Court have become final,
and Umapathymurthy as well as the other Respondents are
bound by them.
By allowing them to re-open the question of trusteeship by
way of an application in an execution petition, the High Court
has gone beyond the decree to be executed and exceeded its
revisional jurisdiction under Section 115 of the CPC. Since the
findings of the Trial Court had attained finality, the decision of
the executing court dated 31.01.2007 by which E.A. No.
5750/2003 was dismissed, should have been affirmed. Thus,

the impugned judgment is not only illegal, but also without
jurisdiction.
10. For the aforementioned reasons, we set aside the
impugned order dated 10.12.2007 in Civil Revision Petition No.
1007 of 2007 passed by the High Court. The order of the City
Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 is
restored. The appeal is allowed accordingly.
………..….…………………………..J.
(N.V. RAMANA)
….…………………………………….J.
(MOHAN M. SHANTANAGOUDAR)
……….……………………………….J.
(AJAY RASTOGI)
NEW DELHI;
SEPTEMBER 13, 2019

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