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Judgment
V. Kanagaraj, J.—Petitioners have filed the above Civil Revision Petition against the fair and decretal order dated 18.4.2001 made in
E.P.No.181 of 2000 in O.S.No.1033 of 1994 by the Court of Principal Subordinate Judge, Dindigul. The first respondent/first
defendant/Judgment Debtor and his Legal Representatives are the Revision Petitioners herein.
The brief history of the case is that the plaintiffs in O.S.No.1033 of 1994 had entered into an agreement with P.C.Meeran, the father of the 2nd
defendant, on 3.4.1974 to fell the sandalwood trees and remove them from the lands of the plaintiffs; that since the said Meeran did not act as per
the terms of the agreement and performed his part as agreed, the agreement was cancelled and he had lost his right under the agreement; that
thereafter, the plaintiffs had been moving the District Forest Officer for cutting orders in their name but they were reluctant to issue cutting order in
favour of the plaintiffs; that the plaintiffs moved this Court in W.P.No.1563 of 1994 against the District Forest Officer and the District Collector,
Madurai for giving necessary directions to them to permit the plaintiffs to extract the sandalwood from their patta lands; that the 2nd defendant had
filed W.P.No.5890 of 1994 before this Court objecting to the claim of the plaintiffs; that then, in that proceeding, this Court passed an order
remitting the matter to the District Collector, Madurai, directing him to consider the claim and counter claim of the parties; that the then Collector of
Madurai also had passed an order on 27.3.1984 directing the District Forest Officer, to transfer the cutting permit in the name of the land owners
i.e. the plaintiffs; that due to the prolonged intervention and objections by the 2nd defendant, the issuance of the cutting order was very much
delayed and hence the plaintiffs had entered into a compromise with the 2nd defendant on 7.11.1986 under which, the plaintiffs had agreed to sell
the sandalwood to one B.Venkateswara Rao of Madras and the 2nd defendant and to get the cutting order in his name and assign it in favour of
B.Venkateswara Rao for some gain; that there was a tripartite agreement, but again as B.Venkateswara Rao and the 2nd defendant had failed to
act as per the contract and perform their part, those agreements also had become unenforceable and that the 2nd defendant had also lost all rights
under the agreement.
The further facts of the case are that chagrined at the failure, the 2nd defendant filed a suit in O.S.No.2458 of 1990 before the Court of District
Munsif, Dindigul against the plaintiffs and others for permanent injunction to restrain them from interfering with the entry of the 2nd defendant in the
properties of the plaintiffs for the purpose of numerating the sandalwood trees therein; that the plaintiffs hotly contested the suit by stating that the
2nd defendant had no subsisting interest to maintain the suit; that finding that he cannot overcome the defence and succeed in the proceeding, the
2nd defendant allowed the suit and hence the same as dismissed as not pressed on 3.2.1992; that as such the exclusive right of the plaintiffs over
the sandalwood trees in the plaintiffs'' properties is confirmed and continued as before; that the first defendant had approached the plaintiffs once to
purchase the sandalwoods in their lands; that the offer of the first defendant was turned down by the plaintiffs; that the first defendant being an
influential person had made up his mind to take the sandalwood from the plaintiffs'' land at any cost as the value of them is increasing very much;
that there has never been any agreement between the plaintiffs and the first defendant at any time and hence, the first defendant had no manner of
right over the sandalwoods of the plaintiffs; that the first defendant who was craving for the sandalwoods appeared to have created some records
in collusion with the 2nd defendant to make a claim to the sandalwoods of the plaintiffs and he moved this Court for the transport of the
sandalwoods from the plaintiffs'' land to the Depot of the Forest Department, by filing a writ petition; that the plaintiffs represented by P.E.Dhanraj
Pillai had objected to the prayer of the first defendant through W.P.Nos.10976 and 10978 of 1994; that in the meanwhile as the first defendant in
collusion with the 2nd defendant moved the defendants 3 and 4 and with their help, attempted to remove the sandalwoods from the plaintiff''s land,
the plaintiffs filed a suit for permanent injunction against the present defendants 1 to 4 restraining them from entering into the lands of the plaintiffs
and removing the sandalwoods in O.S.No.329 of 1994 and the same is pending before the Court of Subordinate Judge, Dindigul and also filed an
application for temporary injunction.
The further facts of the case in hand are that however, the High Court passed an order on 15.9.1994 directing the third defendant to remove all
the sandalwoods from the plaintiffs lands at Sirumalai without demarking any portion of the trees in the presence of the Tahsildar, Dindigul and after
giving notice to all the parties to the writ petitions and the appeals and all the sandalwoods should be transported to Forest Department at Salem
and stored in Government Depots at Salem and the third defendant should give a copy of the details of the number of trees transported to the
Government Depots; that further this Court specifically directed the parties to establish their title to the sandalwoods in the Civil Court and
whoever succeeded in getting his title established would be entitled to take the sandalwoods from the Government Depots.
In the meanwhile, the said B.Venkateswara Rao, who had lost his right under the agreement with the plaintiffs also filed a suit in the Additional
Sub Court, Dindigul as O.S.No.414 of 1994 against the plaintiffs, Defendants 1 and 2 and others for declaration declaring that the sandalwoods
belong to him as per the agreement and for permanent injunction restraining the defendants therein from tampering with or removing the
sandalwoods and the said suit is also pending; that while so, on 16.12.1994, the plaintiffs came to know that the first defendant had filed a collusive
suit in O.S.No.951 of 1994 against the defendants 2 to 4 to get a decree and to remove the sandalwoods from Salem Government Depot behind
the back of the plaintiffs; that the sandalwoods at Salem Depot are under the direct control of the 5th defendant herein; that the defendants 1 to 4
have misled the Court to secure a collusive decree and the first defendant is trying to remove the valuable sandalwoods from Salem Depot on the
basis of this collusive decree by making the defendants 2 to 4 to submit to the decree dated7.12.1994; that the plaintiffs have the paramount and
exclusive title over the sandalwoods now in the custody of the 5th defendant in Salem Depot. On such averments, the plaintiffs have filed the above
suit before the trial Court praying to set aside the decree dated 7.12.1994 made in O.S.No.951 of 1994 and consequently restraining the
defendants by way of permanent injunction from removing the sandalwood billets.
It further comes to be known thawt the Court of Subordinate Judge, Dindigul having conducted a trial ultimately dismissed the suit filed by the
plaintiffs in O.S.No.1033 of 1994. Aggrieved, the plaintiffs therein who are the respondents 1 to 4 herein have filed an appeal in A.S.No.97 of
1997 on the file of the Court of District Judge, Dindigul and the appellate Court though partly allowed the appeal regarding the relief of setting
aside the collusive decree and judgment dated 7.12.1994 in O.S.No.951 of 1994 by the Court of Subordinate Judge, Dindigul, confirmed the
decision of the trial Court regarding the consequential relief of permanent injunction, thus dismissing that part of relief prayed for by the plaintiffs in
the suit. Aggrieved, the defendants have filed the Second Appeal in S.A.No.585 of 1998 before the High Court and this Court in its judgment and
decree dated 29.2.2000 not only modified the decree thereby granting the relief of permanent injunction restraining the appellant/defendant therein
from removing the sandalwood billets alleged to have been stored in his premises,but also directing to return the same in favour of the plaintiffs,
thus fully making use of the provisions of Order 41 Rule 33 C.P.C., but also dismissed the appeal with costs of the plaintiffs, besides passing the
following scathing remarks not only against the fraudulent activities committed on the part of the defendants therein, but also the Forest Officials
acting in connivence of the illegal acts of the defendant thus getting a decree in favour of the defendant in a collusive manner so far as the decree
passed in O.S.No.951 of 1994 is concerned. It is relevant to extract the relevant passages from the second appeal.
The summons in the suit admittedly was not served on the Forest Officials and it is really baffling as to how the Forest Officials instructed the
Government Pleader to report that they had no objection for a decree being passed on 7.12.1994. This would clearly show that the Forest
Officials had also colluded with appellant while bringing about a decree in O.S.951 of 1994.
The Principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine or fraud in the hands of dishonest
litigants. The courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. A
person, whose case is based on falsehood has no right to approach the Court he can be summarily thrown out at any stage of the litigation. A
judgment or decree obtained by playing fraud on the Court is a nullity and honest in the eyes of law such a judgment/decree by the first Court or by
the Highest Court has to be treated as a nullity by every Court. Whether superior or inferior it can be challenged in any Court even in collateral
proceedings. Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .
In the instant case, the appellant had created documents and hoodwinked the Court and obtained a decree. In the language of the Supreme Court
he had cheated with intention to get an advantage, he has been guilty of playing fraud on the Court as well as on the opposite party.
The next question relates to whether the lower appellate Court was justified in refusing the relief of injunction prayed for by the Plaintiffs. The
reasoning in this regard by the Lower appellate Court appears to be faulty. When it is found that the appellant had played a huge fraud on the
Court and brought about a collusive decree by refusing injunction in favour of the plaintiffs the very purpose of setting aside the decree is defeated.
The more fact that from the Commissioner''s report Ex.C.1. it is seen that the sandalwood billets had been already transported from the Salem
Forest Depot by the appellant to his village and kept in his premises will not entitle the appellant to have custody of the same. The lower appellate
Court should have moulded the relief having regard to the facts and circumstances of the case. This is a fit case where the provisions of order 41
Rule 33 have to be invoked and the plaintiffs given relief.
There will be a decree for permanent injunction in favour of the plaintiffs restraining the appellant from removing the sandalwood billets stated to be
stored in his premises and the same will be returned to the plaintiffs. The decree of the lower appellate Court will stand modified to the extent
indicated above. The second appeal is dismissed with costs of the plaintiffs. Counsel fee Rs.5000/- one set. Consequently the miscellaneous
petitions CMP 6412 and 6413 of 1998 are also dismissed.
While dismissing the second appeal with cost and in modification of the lower appellate Court doth order and decree as follows:
that the appellant/1st defendant be and hereby is restrained by permanent injunction from removing the sandalwood billets stated to be stored in
his premises.
that the appellant/1st defendant be and hereby is directed to return the sandalwood billets to the respondents/plaintiffs.
The plaintiffs have then, with intent to execute the decree, filed E.P.No.181 of 2000 before the Court of Execution, Subordinate Judge, Dindigul
and the said Court having dealt with the pleadings in the Execution Petition, and tracing the facts and circumstances of the case from the beginning
and having allowed the parties to record their evidence during which though no oral evidence had been adduced on either side, three documents
would be marked on the part of the respondents No.3 to 5 as Exs.B1 to B3, Ex.B1 dated 20.7.2000 being a letter said to have been written by
the first respondent in favour of the respondents No.3 and 4, Ex.B2 dated 6.12.2000 being a letter written by the third respondent and Ex.B3
dated 28.4.1994 being the copy of the judgment made in Writ Appeals No.598 and 599 of 1994 and in consideration of such evidence placed on
record, and having its own discussions in detail, not only on the facts and circumstances encircling the whole case, but also discussing the position
of law on the subject particularly extracting the relevant passages from the judgment of the second appeal and the conclusions arrived at by the
learned single Judge of this Court in S.A.No.585 of 1998 dated 29.2.2000 and remarking that the Execution Court cannot go beyond the decree
which is a settled proposition of law and on further reasons assigned would allow the Execution Petition filed by the plaintiffs as prayed for. It is
only aggrieved against this fair and decretal order passed by the Execution Court and the Court of Subordinate Judge, Dindigul, the
respondents/defendants therein have come forward to file the above Civil Revision Petition on certain grounds as brought-forth in the grounds of
revision.
During arguments, the learned counsel for the petitioners and the learned counsel for the respondents would not only argue elaborately, but also
would file their written arguments in support of their respective claims. The main arguments submitted on the part of the revision petitioners are that
the executing Court has no jurisdiction since sandalwood billets were not within its jurisdiction at any point of time from the institution of the suit;
that the decree holders cannot take delivery without paying the expenses incurred by the revision petitioners amounting to Rs.2,14,01,616/=; that
the executing Court cannot direct the Forest Officials to issue transport permit and permit to sell sandalwood billets since it is outside the scope of
the suit and governed by the Forest Act and the Rules and G.Os. issued thereunder; that the executing Court has to decide all the matters relating
to discharge and satisfaction of the decree u/s 47 of the C.P.C. and that the decree in O.S.No.1033 of 1994 is subject to the directions in
W.A.Nos.598 and 599 of 1994, dated 28.4.1994 since the suit itself had been filed based on the directions issued in the said writ appeals; that
out of the decisions cited by the Court below in its order, the decision reported in AIR 1920 Mad 427 will not apply to the facts and
circumstances of the case, whereas the decision reported in AIR 1947 Mad 347 will apply; that applying the principles in State of M.P. Vs.
Mangilal Sharma, cited by the Court below in its order, the points raised in the counter are relating to discharge and satisfaction of the decree and
the parties are bound by the directions in W.A.Nos.598 and 599 and 1994. On such arguments, the learned counsel for the petitioner would pray
to allow the above civil revision petition.
In reply, the learned counsel for the respondents 1 to 4, would not only argued elaborately but also would file his written arguments, would
submit regarding the question of jurisdiction of the executing Court that indisputably the suit came to be filed before the Court of Subordinate
Judge, Dindigul and there was no question relating to jurisdiction raised by virtue of Section 38 of the Code of Civil Procedure; that the jurisdiction
of the Court which passed the decree was not taken away and it has been repeatedly held that the Court which passed the decree has jurisdiction
to execute it even outside the territorial limits of its ordinary civil jurisdiction; that indisputably the sandalwood billets are under the custody of the
deceased first petitioner, who had removed the billets contrary to the orders of the Court, as such the deceased first petitioner is bound to return
the sandalwood billets removed by him and the relief could be granted under Order 21 Rule 35 CPC and as such the question of jurisdiction
would not arise at all.
Regarding the claim of the petitioners for costs, the learned counsel for the respondents would submit that the petitioner did not raise or made
any such claim in the suit proceedings and therefore it is not open for the petitioner to seek or make a claim for alleged amount spent for
safeguarding the sandalwood billets; that as a matter of fact, the first petitioner, contrary to the directions passed by this Court had removed the
sandalwood billets from the Government godown and taken away the same to his own godown at Perambalur and this itself would be sufficient to
hold that the deceased first petitioner cannot claim the benefit of the order and that the claim is totally unsustainable and beyond the powers of
executing Court.
Further submitting that the deceased first petitioner filed a suit in O.S.No.233 of 2001 on the file of the Court of Subordinate Judge praying to
restrain the respondents 1 to 4 from taking delivery of the sandalwood billets preventing the execution of the decree for taking delivery of the
goods as per the order in E.P.No.181 of 2000, dated 18.4.2001, the learned counsel for the respondents would pray to dismiss the above civil
revision petition.
In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both,
what could be gathered is that the plaintiffs have filed the suit in O.S.No.1033 of 1994 on the file of the Court of Subordinate Judge, Dindigul for
setting aside the decree dated 7.12.1994 made in O.S.No.951 of 1994 by the Court of Subordinate Judge, Dindigul and consequently praying for
a permanent injunction restraining the first defendant, his men, servants from removing sandalwood transported from S.No.685 Sirumalai Village,
now lying in the Government Forest Depot at Salem and the trial Court having dismissed the suit as a whole, aggrieved, the plaintiffs have filed the
appeal in A.S.No.97 of 1997 on the file of the Court of District Judge, Dindigul and the said Court having partly allowed the appeal regarding the
first relief of setting aside the decree made in O.S.No.951 of 1994 had dismissed the appeal disallowing the second relief pertaining to the grant of
permanent injunction thus restraining the first defendant, his men and agents from removing the sandalwood which is kept in the Government Forest
Depot, Salem.
Aggrieved, the defendants have preferred the second appeal in S.A.No.585 of 1998 before the High Court of Judicature at Madras, and the
learned single Judge of this Court had not only dismissed the second appeal, but also making use of the appellate powers conferred by Order 41
Rule 33 C.P.C. had granted the consequential relief of injunction as it required in the circumstances of the case, thus dismissing the appeal
preferred by the defendants with costs of the plaintiffs, ultimately decreeing the suit as prayed for.
It is only towards execution of this decree the plaintiffs have filed E.P.No.181 of 2000 in O.S.No.1033 of 1994 on the file of the Court of
Principal Subordinate Judge, Dindigul and the said Court having dealt with the Execution Petition in the manner already discussed in the preceding
paragraphs had ultimately allowed the Execution Petition filed on the part of the plaintiffs as per its fair and decretal order dated 18.4.2001,
testifying the validity of which, the defendants have filed the above revision petition on ground sch as (i) that the lower Court failed to see that the
E.P. filed was not maintainable; (ii) that the lower Court should have noted that for delivery of specific movable properties the Execution Petition
cannot be filed under Order XXI Rule XXXV C.P.C., but under Order XXI Rule XXXI C.P.C.; (iii) that the learned Judge failed to see that the
schedule of property given in the Execution Petition does not tally either with the decree passed by the trial Court or with the decree passed by the
High Court; (iv) that the lower Court has not properly appreciating the provisions of Section 39 C.P.C. ;(v) that the lower Court has not relied
upon the Full Bench decision of this Court reported in AIR 1947 Mad 347; (vi) that the learned Judge failed to see that the Execution Court has
no territorial jurisdiction to execute the decree for delivery of specific movable property; (vii) that the learned Judge failed to see that the decision
reported in AIR 1956 SC 57 is not applicable to the facts of the present case; (viii) that the learned Judge failed to appreciate the decision of the
First Bench of this Court passed in Writ Appeal Nos.598 and 599 of 1994;(ix) that the learned Judge has misconstrued the decree and failed to
see the sandalwood billets are in the custody of the Government; (x) that the learned Judge has not properly appreciated the facts in law on the
subject. On such and other grounds, the revision petitioners have filed the above revision ultimately praying to set aside the fair and decretal order
passed by the Execution Court and the Court of Principal Subordinate Judge, Dindigul in E.P.No.181 of 2000.
A careful perusal of the order passed by the Court of Execution dated 18.4.2001 would reveal that the said Court has not only traced the facts
and circumstances as pleaded by parties, but also framing proper point for determination of the questions involved in the Execution Petition, and
having permitted the parties to record their evidence, thus giving them adequate and reasonable opportunities to be heard and having an elaborate
discussion on all the points raised in the Civil Revision Petition before this Court now and having appreciated the evidence in the manner required
by law, had ultimately remarked that it cannot go beyond the decree as it is the settled proposition of law and on such sound principles and
reasoning has arrived at the conclusion to allow the Execution Petition by its order dated 18.4.2001.
Excepting for the clarification required pertaining to the ground that the lower Court had failed to note that the Execution Petition, since being
connected to movables should have been filed under Order XXI Rule XXXI C.P.C. Instead of Order XXI Rule XXXV C.P.C., all other grounds
raised have been dealt with by the Lower Court in the appropriate manner and sane conclusions have arrived at in an appreciable manner. Even
regarding this point of maintainability is concerned, it is settled law that just for the reason of misquoting the wrong provision of law, the petitioners
would not become disentitled to get the relief sought for and therefore, even at this score the case of the revision petitioner is unacceptable.
There is absolutely no infirmity or inconsistency either pertaining to the consideration of factual situation of the case or in the application of the
legal dictum by the Execution Court. Nor is it the case of the revision petitioners that the Execution Court has not given adequate opportunities for
them to be heard in violation of the principles of natural justice, nor as anything been established that the Execution Court has gone beyond the
decree passed in the suit till the second appeal, nor even the jurisdiction question raised is sustainable in law and therefore the revision petition in all
respects only fails. Absolutely, no valid or tangible reason that exists for this Court to cause its interference into the well considered and merited fair
and decretal order passed by the Court of Subordinate Judge in E.P.No.181 of 2000 dated 18.4.2001 and therefore, the interference sought to
be made on the part of the revision petitioners in the above revision petition is neither necessary, nor called for in the circumstance of the case.
In result,
(i) the above revision petition fails and the same is dismissed with the costs of the respondents.
(ii) The fair and decretal order dated 18.4.2001 made in E.P.No.181 of 2000 in O.S.No.1033 of 1994 by the Court of Principal Subordinate
Judge, Dindigul is hereby confirmed.