Satheesh vs District Collector and Ors

Thomas P. Joseph, J

Heard. Admit.

Following Substantial questions of law are framed:

i. Whether or not, property of a particular person or persons be proceeded against under revenue recovery proceedings, for the liability, if any, of another person or persons though related by blood or otherwise?

ii. Whether or not, a decree or award of a Court or Tribunal be executed against persons who are not parties to a case without a declaration of the Court or Tribunal in this regard?

iii. Whether or not, a Court of law is justified in assuming or presuming the existence of some facts which are not pleaded by parties or proved by adducing evidence?

Learned Government Pleader takes notice for respondents 1 to 3.

Since respondents 4 and 5, I am told by learned counsel for appellant remained absent in the courts below, I do not propose to issue notice on this Second Appeal to them, and since the the matter could be decided even without their presence. Considering the manner in which I propose to dispose of the Second Appeal, it is submitted by learned counsel for appellant that calling for records is not necessary.

Second Appeal arises from the judgment and decree of learned Additional District Judge, Pathanamthitta in A.S. No. 19 of 2005 confirming judgment and decree of learned Munsiff, Pathanamthitta in O.S. No. 276 of 2001. Appellant sued for a decree for prohibitory injunction to restrain respondents 1 to 3 from initiating proceedings under the Revenue Recovery Act (for short, "the Act") against the suit property, 1.50 cents in survey No. 603 claimed to be acquired by the appellant as per Ext. A1, settlement deed No. 2034 of 1989 and item No. 2, movables (allegedly) belonging to the appellant and kept in item No. 1.

According to the appellant, for the liability allegedly incurred by respondents 4 and 5 under an award passed by the Motor Accidents Claims Tribunal, Pathanamthitta (for short, "the Tribunal") and in execution of that award (E.P. No. 112 of 1994), item Nos.1 and 2 are being proceeded against by respondents 1 to 3. According to the appellant, item Nos.1 and 2 are not liable to be proceeded since Ext. A1, settlement deed was executed in favour of appellant in the year, 1989, much before the Tribunal passed the award. It is contended by learned counsel that under Sec.44 of the Act only the engagements entered by the defaulter in respect of the immovable property after service of written demand are not binding on the Government.

Learned Government Pleader for respondents 1 to 3 contended that trial court has entered a finding that the motor accident which gave rise to the action before the Tribunal occurred some time in the year, 1985 which means that it is after the accident occurred and respondents 4 and 5 incurred liability to pay compensation to the claimant before the Tribunal that Ext. A1, settlement deed was executed in favour of appellant. It is also pointed out that at the time Ext. A1 was executed, appellant was aged only 18 years and that it is obvious that respondents 4 and 5 wanted to escape from payment of compensation payable to the claimant as per the award.

Assuming that Ext. A1, settlement deed was executed before award was passed by the Tribunal, execution proceedings were initiated in E.P. No. 112 of 1994 and pursuant to that, respondents 1 to 3 issued demand notice to the appellant it is still open to the claimant before the Tribunal to contend, having regard to the facts and circumstances of the case that the settlement in favour of appellant is fraudulent, coming under Sec.53 of the Transfer of Property Act (for short, "the TP Act"). None of the provisions of the Act deprives claimant of that right. In such a situation, it was absolutely necessary that appellant impleaded the claimant/claimants before the Tribunal who filed E.P. No. 112 of 1994 as parties to the suit so that, they got the opportunity to challenge binding nature of Ext. A1 on whatever grounds that are available to them. Without them on the party array, no relief could be prayed for by the appellant. It is seen that courts below have not adverted to this aspect of the matter.

In the view I have taken it is not necessary to answer the substantial questions of law framed above. The questions involved in the suit shall be decided by the trial court after the appellant impleads all necessary parties (claimant/claimants before the Tribunal). Resultantly the Second Appeal is allowed by way of remand as under:

i. Judgment and decree of learned Additional District Judge, Pathanamthitta in A.S. No. 19 of 2005 and of learned Munsiff, Pathanamthitta in O.S. No. 276 of 2001 are set aside.

ii. O.S. No. 276 of 2001 is remitted to the learned Munsiff, Pathanamthitta for fresh decision after giving opportunity to the appellant to implead claimant/claimants before the Tribunal as parties to the suit and giving them an opportunity to contest the suit on whatever grounds that are available to them. Parties will get opportunity to adduce further evidence if any.

iii. Parties shall appear before the learned Munsiff, Pathanamthitta on 13.04.2012. All pending interlocutory applications will stand dismissed.