WHEN ex-parte DECREE SET ASIDE MERE REGISTRATION OF SALE DEED IN EXECUTION PROCEEDINGS WILL NOT CONVEY ANY BETTER TITLE

[DR.MARIAPPAN GOVINDARAJAN]

In R. DHATCHANAMOORTHI REPRESENTED BY HIS POWER AGENT R. MUTHUMANIKKAM @ SOBA, THIRUVARUR VERSUS T. KANNAN, T. HARI AND SHYAMALA - 2025 (1) TMI 927 - MADRAS HIGH COURT, one Dhatchinamoorthi through his power agent filed a suit in OS. No.21/2012 for the enforcement of the sale deed dated 06.12.2004.   The total sale consideration of the dispute property is Rs.12.20 lakhs.  An advance of Rs.10 lakhs had been paid on the date of agreement.  A further sum of Rs.1.25 lakhs has been paid and a total sum of Rs.11.25 lakhs has been paid for the purchase of the suit property.  The defendant did not execute sale even after the receipt of the entire amount.  The civil suit filed by the plaintiff was disposed on 11.06.2013 as ex-parte.  The plaintiff filed an execution petition in EP No. 74 2013.  In the execution petition, the sale deed was executed by the trial court in favor of the plaintiff. 

Against this order the defendant filed an application in IA 103 of 2016 to set aside the ex-parte order passed by the Trial Court under section 151 of the Civil Procedure Code, which provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.   The defendant also sought a direction of the Court to make entry in the Book I.  The Trial Court allowed the said application and set aside the ex-parte order.

The revision petitioner, in the present case, filed the present revision petition challenging the order of the Trial Court.  The petitioner contended that the restitution is not permissible under Section 144 of the Civil Procedure Code.  Section 144 (1) of the Civil Procedure Code provides that where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.  Section 144(2) of the Civil Procedure Code provides that no suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1).

The petitioner further contended that the restitution is permissible only when the decree or order has been reversed or modified in the appeal or other proceedings.  Once the sale deed has been executed in the ex-parte proceedings, in the event, the revision petition succeeds in the main suit, there need not be any separate sale deed.  Therefore, the petitioner prayed the Court to interfere in the order passed by the Trial Court. 

The High Court observed that the sale deed has been executed pursuant to the ex-parte decree passed in the suit filed for specific performance of the contract.  The sale deed was executed in the year 2004.  Now the ex-parte order has been set aside.  But the said order has not been challenged.  However, the petitioner informed that he has filed a Special Leave Petition before the Supreme Court.  The Supreme Court did not grant any number to the said petition. 

The High Court also observed that as on the date the ex-parte decree has been set aside and no stay has been granted by the higher courts.  Since there is no decree at all the High Court held that the revision petitioner cannot contended that he derived title by virtue of the sale deed executed in the execution proceedings.   When the ex-parte order has been set aside, the High Court held that mere registration of the sale deed in execution proceedings will not convey any better title.

The High Court held that even assuming that the provision under Section 144 of the Civil Procedure Code it not strictly applicable to the facts of the present case, that will not deter the trial Court to exercise its jurisdiction which is inherent in it and arrest the prejudice caused to the parties at the act of the Court.  If the sale deed is allowed to be on record and used for any other purpose, it would certainly prejudice to the respondents.  Therefore, the Trial Court by its inherent jurisdiction has set right the mistake and restored the status quo anta which will not cause prejudice to either party. 

The High Court further observed that during the existence of the agreement another purchase was made in the year 2011.  The High Court observed whether the subsequent purchaser is a bona fide purchaser without notice to the agreement or not, is a matter of evidence and the same has to be seen only in trial.  The High Court, in order to protect the interest of the parties, put restrictions on the parties from making any alienation of the suit properties till the disposal of the main suit.  The High Court also directed the trial court to dispose the main suit early without any further delay.  The High Court dismissed the revision petition.