C.R.P. (MD) Nos. 987 to 989 of 2010 (PD) and M.P. (MD) Nos. 1, 1 & 1 of 2014. Case: Arulmigu Meenakshi Sundareswarar Devasthanam Vs E.M.G. Soundarajan. Chennai (Madras) High Court

Case Number:C.R.P. (MD) Nos. 987 to 989 of 2010 (PD) and M.P. (MD) Nos. 1, 1 & 1 of 2014
Party Name:Arulmigu Meenakshi Sundareswarar Devasthanam Vs E.M.G. Soundarajan
Counsel:For Appellant: A.R.L. Sundaresan, Senior counsel for S. Manohar and V. Meenaksi Sundaram, Advs. and For Respondents: R. Janakiramulu, G. Prabhu Rajadurai, M. Vallinayagam, Senior counsel assisted by D. Nallathambi, V. Janakiramulu, J. Barathan and A.R.L. Sundaresan, Senior counsel for S. Manohar, Adv.
Judges:V. M. Velumani, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 5; Order XXI Rule 11; Order XXIII Rule 3; Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - Sections 109, 43
Judgement Date:December 04, 2014
Court:Chennai (Madras) High Court
 
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Order:

V. M. Velumani, J.

  1. In all the CRPs., petitioner is the plaintiff in O.S. 123 of 1970 and petitioner in E.P. No. 77/2006 and respondent in E.A. No. 554 of 2009 and E.A. No. 35 of 2010 on the file of the I Additional Sub Court, Madurai. The parties are referred to as arrayed in C.R.P. (MD) No. 987 of 2010.

  2. The petitioner filed O.S. 123 of 1970 against 26 persons for recovery of properties belonging to them. One E.M.G. Soundararajan now deceased was 6th defendant in the suit. The suit was decreed on 23.12.1978 against all the defendants except 7th defendant. The said Soundararajan filed A.S. No. 209 of 1979 on the file of this Court and the same was dismissed by this Court on 12.2.1986. The said Soundararajan filed R.C.M.P. No. 3891 of 1996 for reviewing the judgment dated 12.02.1986 made in A.S. No. 209 of 1979. While so at the behest of this Court the said Soundararajan and the petitioner entered into a compromise. This Court recorded the memo of compromise in the review application and passed orders in the review application on 23.04.1990. As per the memo of compromise the said Soundararajan agreed to pay Rs. 33,00,000/- to the petitioner. He has to pay a sum of Rs. 2,00,000/- on or before 15.7.1990 and a sum of Rs. 6,00,000 per year of Rs. 3,00,000/-per half year on or before 15.7.1991, 15.7.1992, 15.7.1993 and 15.7.1994 and Rs. 7,00,000/- on or before 15.7.1995. The amounts to be paid in instalments will carry interest at 12% per annum to be paid on or before 10th of every quarter i.e., once in three months. In the default clause it has been agreed that if the said Soundararajan commits default for more than a year he must surrender possession of the land to the petitioner.

  3. The said Soundararajan defaulted the payment of instalments. The petitioner filed E.P. No. 111 of 1994 for recovery of possession. The said E.P. was dismissed in view of stay granted by this Court in CMP No. 5991 of 1994 in AAO No. 435 of 1994. The said AAO was dismissed on 6.11.1995. The petitioner again filed execution petition for recovery of possession which was numbered as E.P. No. 77 of 2006. The Soundararajan filed counter affidavit opposing the same on the ground that E.P. is time barred. The said Soundararajan died on 24.3.2007. The first respondent claims that she is legally wedded wife while 5th respondent claims that she alone is legally wedded wife of the said Soundararajan. Both first and fifth respondents and their children are impleaded as respondents 1 to 8. Respondents 9 & 10 were impleaded as they claim to be trustees of suit property entitled to manage it. After being impleaded the respondents 1 to 8 filed counter affidavit. The respondents sought for dismissal of E.P. mainly on the ground that the said E.P. was barred by limitation.

  4. The respondents 2 and 3 filed E.A. No. 554 of 2009 to take maintainability of E.P. as a preliminary issue. They also stated that the executing court condoned the delay of 275 days and subsequently 335 days in re-presenting the E.P. without any notice to them. The petitioner filed counter affidavit stating that E.P. was filed in time and it is not barred by limitation and in any event as per Section 109 of the HR & CE Act, the provisions of Limitation Act are not applicable for recovery of properties belonging to the petitioner temple. The respondents 2 & 3 also filed E.A. No. 113 of 1999 for permission to deposit Rs. 31,00,000/- being the balance amount payable by their father. According to them their father was always ready and willing to pay the instalments without any default but he was prevented from making any payment as per orders of this court made in CMP No. 5991/1994 in AAO No. 435 of 1994. After the death of their father they are always ready and willing to pay the balance amount in one lump sum. They claimed that they are not liable to pay any interest as their father was prevented from paying instalments by order of this court and petitioner did not make any demand for payment of amount and did not take any action for more than 12 years. The executing court by the order dated 18.11.2009, allowed the said application. The respondents 2 and 3 deposited a sum of Rs. 31,00,000/- on 25.11.2009.

  5. The petitioner filed C.R.P. Nos. 1982 and 1983 of 2009 challenging the above said order. This court by the order dated 01.12.2009 disposed both the CRPs with the direction to the lower court to dispose E.P. No. 77 of 2006 without being influenced by deposit. Respondents 3 & 4 filed E.A. No. 35 of 2010 to record full satisfaction as they have paid the entire amount. In view of this application the petitioner filed review application No. 48 & 49 of 2010 for clarification. This Court by the order dated 26.4.2010 disposed the applications holding that there is no necessity for any clarification as the earlier order directed the lower Court to decide the E.P., on merits.

  6. The learned Judge heard the arguments in E.P. No. 77 of 2006, E.A. No. 554 of 2009 and E.A. No. 35 of 2010. The learned Judge dismissed the E.P. No. 77 of 2006 and allowed E.A. No. 554 of 2009 and E.A. No. 35 of 2010 and recorded full satisfaction.

  7. Against these orders petitioner has filed the above 3 CRPs.

  8. Heard Mr. A.R.L. Sundaresan, learned Senior Counsel for Mr. S. Manohar, learned counsel appearing for the petitioner, Mr. R. Janakiramulu, learned counsel appearing for R1, Mr. G. Prabhu Rajadurai, learned counsel appearing for R2 & R3, Mr. M. Vallinayagam, learned Senior Counsel Assisted by Mr. D. Nallathambi, learned counsel appearing for R4, Mr. V. Janakiramulu, learned counsel appearing for respondents 5 to 8 and Mr. J. Barathan, learned counsel appearing for R9 and Mr. V. Meenakshi Sundaram, learned counsel appearing for the petitioner in M.P. (MD) Nos. 1 to 1 of 2014.

  9. The learned Senior counsel appearing for the petitioner argued that:-

    1. the learned I Additional Subordinate Judge, Madurai erred in dismissing the E.P., as barred by limitation. The learned Judge committed irregularity by taking the year when E.P., was numbered as date of filing instead of actual date of filing of E.P. Admittedly, on two occasions delay of 275 days and 335 days in re-presentation were condoned. The learned Judge having noted this fact erred in holding that the E.P. was filed beyond the time limit prescribed in the Limitation Act. The learned judge failed to consider the averments of petitioner that E.P. was filed in time and it is not barred by limitation. Further the learned counsel for the petitioner argued that the learned Judge did not give any reason for not accepting the contention of petitioner that as per Section 109 of HR & CE Act, the provisions of Limitation Act are not applicable to legal proceedings for recovery of properties belonging to the temples like petitioner;

    2. the present E.P., is continuation of earlier E.P. No. 111 of 1994 filed on 18.12.1996 by the petitioner. The said E.P., was dismissed, in view of stay granted by this Court in C.M.P. No. 5991 of 1994 in AAO. No. 435 of 1994. The order in earlier E.P., whether closing or dismissing will automatically be revoked and E.P., will be revived and subsequent E.P., will only be continuation of earlier E.P.;

    3. the respondents have participated in the present E.P. They have filed various applications and raised untenable grounds with a view of drag on the proceedings and wriggle out of their liability under the decree. Having fully participated in the E.P., proceedings, it is not open to the respondents to raise a plea that the E.P., is not maintainable or barred by limitation;

    4. the provisions of Limitation Act is not applicable to suits for recovery of properties belonging to the temple in view of Section 109 of HR & CE Act. The execution petition is continuation of the suit to implement the decree obtained by the temple. In view of operation of Section 109 of the Act, the submissions of respondents that E.P., is time barred, is not maintainable;

    5. the learned Sub Judge having taken note of condonation of delay of 275 days and 335 days erred in holding that the E.P., was barred by limitation. The learned Judge has rightly rejected the contention of the respondents that without notice to opposite party, delay in representation cannot be condoned. The learned Judge erred in taking the year when the E.P., was numbered as date of filing. The learned Judge ought to have taken the original date of filing of E.P., for deciding the issue of Limitation. The respondents having taken a stand that delay in representation was condoned without notice to them cannot raise a plea that applications to condone the delay in re-presentation were not numbered and no order was passed condoning the delay. Further before numbering the E.P., and taking it on file, the respondents have no locus standi to object to any procedure or orders passed by Court. The learned Senior Counsel also argued that Courts have power to condone the delay in representation even without an application;

    6. the respondents have made frivolous and defamatory allegations that the petitioner had played fraud on Court, which is without basis and has to be rejected in limine;

    7. the petitioner is entitled to engage any Advocate from its panel. The respondents have no right to object to the appearance of any one of the panel advocates of petitioner and procedure to be followed by present counsel for petitioner;

    8. the learned Sub Judge erred in recording full satisfaction. The learned Judge did not have jurisdiction to record full satisfaction. This Court directed E.P., to be proceeded with on merits. The learned Judge travelled beyond the decree and order of this Court. By the order dated 23.04.2010 made in R.C.M.P. No. 3891 of 1986 in A.S. No. 209 of 1979, this Court granted time till 15.07.1995 for payment and in default to surrender possession to petitioner. The orders in AAO. No. 435 of 1994 was vacated and therefore, the contention that the compromise decree was not acted upon...

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