13 Sep 2019 2:29 PM GMT
The Supreme Court has reiterated a settled proposition that an executing court cannot travel beyond the order or decree under execution. In this case, the suit was filed on behalf of the temple by one K.S. Jaganathan and S. Bhaskaran in their capacity as trustees, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties at that time....
The Supreme Court has reiterated a settled proposition that an executing court cannot travel beyond the order or decree under execution.
In this case, the suit was filed on behalf of the temple by one K.S. Jaganathan and S. Bhaskaran in their capacity as trustees, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties at that time. One Umapathymurthy 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. The suit was decreed and later Umapathymurthy' s appeal was dismissed by the Appellate Court.
Thereafter, in the execution petition, Umapathymurthy filed an execution application under Section 47 of the Code of Civil Procedure, 1908 against the Decree Holder 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 Decree Holder was falsely prepared and suppressed the name of Umapathymurthy as the eldest son of Sadhasivamurthy.
While dismissing the said application, the executing court noted 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.
The High Court, in revision petition filed by the JD, relying on some sale deeds showing Umapathymurthy as the eldest son and K.S. Sabapathy as the second minor son of Sadhasivamurthy and concluded that Umapathymurthy qualified as the trustee of the temple. It also observed that the decree passed in the original suit was a nullity and could not be enforced.
In the appeal [S. Bhaskaran vs. Sebastian (Dead)], the Supreme Court bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi observed that, by allowing the Judgment Debtors 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. It said:
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.
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