S. Bhaskaran vs Sebastian (Dead) By Lrs. And Ors.

S. Bhaskaran …Appellant(s)

Versus

Sebastian (Dead) By Lrs. & Ors. …Respondent(s)

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

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 Signature Not Verified Digitally signed by

Sundararajan (‘original owners’). Vide settlement deed dated GULSHAN KUMAR ARORA Date: 2019.09.13 16:48:05 IST Reason:

19.09.1947, these original owners endowed the property to the

1 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.

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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

3 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

4 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).

5 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,

6 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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