Holding

The 1987 compromise decree remains in force, the Society retains possession, the execution of possession to the appellant is void, and the pending suits must be tried jointly.

Summary

The Society obtained a 1987 compromise decree granting it possession of a parcel of land. The second respondent later challenged that decree and sold the land to the appellant, who obtained a decree for specific performance in 2003 and was handed possession by a senior bailiff under Order 21 Rule 35 CPC. The Society contested the possession, filing a revision petition. The High Court held the 2003 decree collusive and ordered a joint trial of all related suits. The Supreme Court held that the 1987 decree remains effective until set aside, so the Society’s possession cannot be disturbed; the execution of possession to the appellant is nullified and the pending suits must be tried together. The Court directed that the decree of 2003 need not be reopened and that the possession of the Society be restored pending the outcome of the other suits.

Issues considered

The validity and collusiveness of the 2003 decree (OS No.140) granting specific performance to the appellant.
Whether the appellant can acquire possession despite the existing 1987 compromise decree favoring the Society.
The legality of delivering possession under Order 21 Rule 35 CPC when the decree is pending and the land is not in the possession of the judgment debtor.
The appropriate forum and procedure for adjudicating the interrelated suits, including the question of joint trial.
The effect of the pending suit challenging the 1987 decree on the execution of the 2003 decree.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 35, s. Order 21 Rule 97, s. Section 151
Constitution of Indias. Article 227

Subjects

possessioncompromise decreespecific performanceexecution of decreecollusive decreejoint trialCivil Procedure CodeOrder 21 Rule 35Section 151 CPCArticle 227land title

Judgment

\
MOHAMED MASTHAN A
v.
SOCIETY, CONGREGA TJON, BROS. S. HEART AND ANR.

MARCH IO, 2006

[S.B. SINHA AND P.K. BALASUBRAMANYAN, JJ.] B

Possession--D~termination-First party in possession of land on the
strength of compromise decree between first party and second party-Decree
not questioned-Subsequent suit, by the second party for declaration of C
compromise decree as null and void, pending~Agreement of sale of land by
second party to third party-Suit by third party, for specific performance of
sale, decreed-Land not found in possession of second party-Possession
delivered to third party under Order 21 Rufe 35 CPC-Dismissal of application
offirst party stating to. be in possession of the land-Pendency of suit lly first
party seeking declaration of sale to third party as null and void-In Revision D
Petition against dismissal of application offirst party, High Court holding the
suit filed by appellant as collusive and directed}oint trial of all the suits-On
appeal, held: First party being in possession of the suit land in terms of the
compromise decree, could not be dispossessed pursuantto decree in favour of
the third party, unless the compromise decree is set aside-Correctness of the E
decree passed in the suit filed by the third party can be decided only in the
pending suits and.not by Executing Court-The pending suits directed to be
tried jointly.

The property in question was sold by the Superior General of the
first respondent-society to one 'S'. After the death of the purchaser, his F
wife sold the property to second respondent. Respondent-society filed a
suit in 1987 praying for declaration of title, possession and consequential
injunction. Therein a compromise was entered into and decree was passed
in terms thereof. In 2003 second respondent filed a suit against the
respondent-society on the ground that the compromise ·decree was null and
void as the same was to her ignorance. The suit is still pending. Second G
respondent entered into agreement for sale with the appellant. Appellant
filed suit for specific performance. The suit was decreed and deed of sale
was executed. In Execution Petition for obtaining possession, Central Nazir
noticed that the property was not in possession of the second respondent
H
2 SUPREME COURT REPORTS (2006] 3 S.C.R.

A and hence possession was given to the appellant through Senior Bailiff who
in his report had stated that the second respondent herein was not there.
Respondent-society filed an execution application stating that they were
actually in possession of the property. The same was dismissed. During
pendency of the application, the Society had also filed two suits but the
same were withdrawn. Thereafter Society filed a suit in 2003 and the same
B is pending. Against dismissal of Execution Application Society filed
Revision Petition. High Court went into the question of correctness of
delivery of possession of the property and opined that decree passed in
the suit of the appellant was collusive. It directed joint trial of all the suits.

-
Hence the present appeal.
c Disposing of the appeal, the Court

HELD: l. The consent decree passed in 1987 has not yet been set
aside. It is furthermore not in dispute that in terms of the consent decree,
the first respondent herein is in possession. A decree for permanent
D injunction has been passed in its favour. The Appellant herein in terms
of the decree passed in his favour in 2003 in the suit filed by him and the
purported sale deed pursuant thereto, merely has stepped into the shoes
of the second respondent. He cannot claim a better title than her. Thus,

--
so long the decree passed in 1987 is not set aside, and/ or the original suit
of 2003 filed by the second respondent is not decreed, the possession of
E the first respondent herein could not have been interfered with. The
Central Nazir did notice that the schedule property was not in possession
of the judgment - debtor in suit of 2003 filed by the appellant, but still
the possession thereof was purported to have been taken through Senior
Bailiff under Order 21, Rule 35 of CPC. Even the Senior Bailiff in his
F report states that he went to the plaintifrs place. The defendant was not
there. How the land was identified had not been shown. Even the Village
Administrative Officer refused to sign. In that view of the matter, when
the first respondent in its application under Section 151 CPC stated that
it continued to be in possession, the same cannot be disbelieved. In any
event, having regard to the fact that the first respondent could not have
G been dispossessed pursuant to or in furtherance of the decree passed in
the suit of 2003 filed by the appellant, it would be entitled to continue to
possess the said property and in the event, possession has been taken
symbolically or otherwise, possession should be restored to the first
respondent. (6-G-H; 7-A-Dl
H
MOHAMED MASTHAN 1·. SOCIETY, CONGREGATION, BROS. S. HEART [SINHA, J.J 3

2. High Court was not correct in dealing with the question as to A
whether the decree passed in suit of 2003 filed by the appellant was
collusive or not. Such a question did not and could not have arisen before
the Executing Court. The question may have to be decided in the pending
suits. Until there is a decree in favour of the assignor of the appellant in
those suits, the compromise decree passed in the suit of 1987 would have B
to prevail andprimafacie, the title of the land is with the first respondent.
Interests of justice will be subserved if, in modification of the order passed
by the High Court, both the suits of 2003 filed by the second respondent
and the first respondent are directed to be tried jointly by a competent
court. As the appellant herein is a party in the suit of 2003 filed by the
first respondent, all rival contentions could be gone into therein. [7-E-GI C

3. It is not necessary, to reopen the decree passed in the suit filed by
the appellant. The fate of the decree passed in the said suit evidently would
depend upon the outcome of the pending two suits. The purported delivery
of possession in execution of suit of the appellant will stand nullified and
the possession of the first respondent is recognized subject to the result of D
the suits. [7-G-H; 8-Al

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1617 of2006.

From the Judgment and Order dated 17 .4.2004 of the Madras High
_,..... Court in C.R.P. No. 1827 of 2003. E
V. Krishna Murthy for the Appellant.

P.S. Mishra, Mrs. Swarupa Reddy, Vallinayagam, S. Chandra Shekhar
and T. Harish Kumar for the Respondents.
F
The Judgment ofthe
,¥,
Court was delivered by

S.B. SINHA, J, Leave granted.

The properties in question are said to be belonging to the Society of
Congregation of the Brothers of the Sacred Heart. Brother Lawrence, who G
was then Superior General of the First Respondent-Society (Society) transferred
8 acres and 44 cents of land to one Siluvai Rajan by a deed of sale dated
18.10.1979. According to the Society, the said sale was illegal. After the
death of the said purchaser, his wife sold the property to her sister Juliet

- Mary, Second Respondent herein by a deed of sale dated 23.7.1986. The H
4 SUPREME COURT REPORTS (2006) 3 S.C.R.

A First Respondent filed a suit against the Second Respondent in the Court of ~ ~
District Munsif, Tirunelveli which was marked as OS No. 1220 of 1987
praying for declaration of title and possession and consequential injunction.
The parties entered into a compromise in terms whereof right, title and interest
of the First Respondent was accepted. A compromise memo was also filed. •
The suit of the Society was decreed in terms thereof. A decree was prepared
B on the basis of the said settlement declaring that the suit property belonged
to the plaintiff-Society, and granting permanent injunction restraining the
Second Respondent herein or her agent or her men from in any way interfering
with the peaceful possession and enjoyment of the Society.

C After a lapse of about fourteen years from the date of passing the said
decree, the Second Respondent filed a suit against the Society for a declaration
that the aforementioned consent decree passed in OS No. 1220 of 1987 was
null and void. According to her, she did not appear in the said suit nor put
her signature on the memo of settlement. She was allegedly even not aware
of the institution of the said suit. The said suit admittedly is still pending.
D
In the meanwhile, the Second Respondent entered into a purported
agreement for sale with the Appellant herein on or about I.I 0.2002. The
Appellant filed a suit for specific performance of the contract in the Court of
Subordinate Judge, Tirunelveli being OS No. 140 of 2003. The said suit was ·
decreed on 11.4.2003 and in execution of the said decree, a deed of sale was
E executed and registered on 17.6.2003. The Appellant filed an Execution -
Petition for obtaining possession on the said lands. The Central Nazir, while
purporting to deliver possession on 19.10.2003, in his report stated:

"Most respectfully submitted, to the Sub Judge, Tirunelveli by the
petitioner/ plaintiff, on 19. I0.2003 on the orders ofN. Ganesan, Senior
F bailiff District Court, Tirunelveli along with the under signed, I visited
the schedule property and it was noticed that on the above schedule
property was not in the possession of the respondent/ defendants, I
explained the nature of order to the persons who accompanied me
and the property was vacant land, I took possession through senior
G bailiff of the Court under Order 21 Rule 35 CPC."

The Senior Bailiff in his report to the court recorded :

"I went to the petitioner's place, at Munearpalam Village, Palai T.K.,
along with the witnesses, the respondent was not there, I explained
H the nature of order regarding the vacant land under possession of
MOHAMED MASTHAN r SOCIETY, CONGREGA T!ON, BROS. S. HEART [SINHA, J.] 5

respondent and under order 21 rule 35 CPC, and gave possession to A
petitioner, attested copy of Sale Deed, decree copy is enclosed with
this return. Village Administrative order (sic) refused to sign."

The First Respondent contends that they are still in possession. It filed
an application in the said Execution Application being EA No. 1222 of2003
before the Executing Court on the next day i.e. on 29.10.2003 stating: B
"Now I came to understand records have been created as though the
2nd respondent had delivered the possession of the property to the I st
respondeqt Even though no such thing had happened in reality.
Because I alone is in the possession and enjoyment of the property." C
The said Execution Application was dismissed. During pendency of the
said Execution Application, the First Respondent filed two suits being OS
No. 271 of 2003 and OS No, 276 of 2003. The first suit was filed for
restraining the defendant (Second Respondent herein) from giving possession
of the suit property whereas in the second suit, the prayer made was for D
cancellation of the decree passed in OS No. 140 of 2003 and declaring the
sale deed borne out of the said decree as null and void. Both the suits were
withdrawn. The First Respondent thereafter filed a suit for declaration of title
and consequential permanent injunction in the Court of District Munsiff,
Tirunelveli being OS No. 641 of 2003. The said suit again indisputably is
still pending. E
Against the order dismissing the said EA No. 1222 of 2003, the First
Respondent filed a Civil Revision Petition before the High Court. By reason
of the impugned judgment, the High Court not only went into the question
as regard correctness or otherwise of the purported delivery of possession of F
the land in question in favour of the Appellant herein but also opined that the
decree passed in the aforementioned OS No, 140 of 2003 was collusive.
Having held so, it directed:

"In the above said circumstances, the power given to the Court under
Article 227 of the Constitution of India to have the superintendence G
over all the Courts had got to be exercised to set aside the very decree
and judgment passed in O.S. No. 140 of 2003 and the first respondent
is not entitled to execute the decree and take possession of the ~uit
property. But, however, the parties to the proceedings in 0.S. No.
140 of 2003 shall take trial of that suit along with other suits in 'o.s.
No. 641 of 2003, District Munsif Court, Tirunelveli, and O.S. No. H
6 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 381 of 2003 on the file of the District Munsif Court, Tirunelveli. As
the matters are inter related with each other in respect of the very
same subject matter of the suit properties and also to avoid further
multiplicity of proceedings, I come to the conclusion that all the suits
have got to be tried jointly. Hence, I do hereby withdraw the suits
pending before the District Munsif Court, Tirunelveli, and post these
B suits before the Sub Court, Tirunelveli for a joint of all the suits
which alone appears to me as more appropriate."

Mr. V. Krishna Murthy, learned counsel appearing on behalf of the
Appellant raised a short question in support of this appeal. It was urged that
C having regard to the fact that in the Execution Application, the bailiff delivered
possession of the suit land in favour of the Appellant, the First Respondent
herein could not have maintained an application purported to be under Section
151 of the Code of Civil Procedure for the reliefs prayed for therein. Having
not filed an application in terms of Order 21, Rule 97 of the Code of Civil
Procedure, the First Respondent, thus, could not have raised a contention as '
D to whether the decree obtained by the Appellant in the said OS No. 140 of
2003 was collusive or not. Such a contention, Mr. Krishna Murthy would
submit, should have been raised in a duly constituted suit.

Mr. P.S. Mishra, learned senior counsel appearing on behalf of the
E Respondent, on the other hand, submitted that as the First Respondent
continued to be in possession of the suit property, the High Court rightly
went into the question as regards legality or otherwise of the decree passed
in the said OS No. 140 of 2003. It is not a case, Mr. Mishra would submit,
-
where a suit for specific performance was filed imp leading the owner of the
property. Evidently, the Appellant and the Second Respondent herein had
F entered into the said purported agreement for sale dated 1.10.2002 only in an
attempt to get rid of the compromise decree dated 27.4.1989 passed in OS
No. 1220 of 1987.

It is not in dispute that the consent decree passed in O.S. No.1220 of
1987 has not yet been set aside. It is furthermore not in dispute that in terms
G of the consent decree, the First Respondent herein is in possession. A decree
for permanent injunction has been passed in its favour. The Appellant herein
in terms of the decree passed in his favour in OS No. 140 of 2003 and the
purported sale deed pursuant thereto on 17.6.2003, merely has stepped into
the shoes of the Second Respondent. He cannot claim a better title than her.
H Thus, so long the decree passed in the said OS No. 1220 of 1987 is not set
- MOHAMED MASTHAN 1•. SOCIETY. CONGREGATION, BROS. S. HEART [SINHA, J.] 7

·aside, and/ or the original suit No. 381 2003 is not decreed, the possession A
of the First Respondent herein could .not have been interfered with. The slip-
shod manner in which the purported delivery of possession was sought to be
effected has been noticed by us. The Central Nazir did notice that the schedule
property was not in possession of the judgment debtor in OS No. 140 of 2003
but still the possession thereof was purported to have been taken through B
Senior Bailiff under Order 21, Rule 35 of the Code of Civil Procedure. Even
the Senior Bailiff in his report states that he went to the plaintiffs place. The
defendant was not there. How the land was identified had not been shown.
Even the Village Administrative Officer refused to sign.

In that view of the matter, when the First Respondent in its application C
under Section 151 of the Code of Civil Procedure stated that it continued to
be in possession, the same cannot be disbelieved. Jn any event, having regard
to the fact that the First Respondent could not have been dispossessed pursuant
to or in furtherance of the decree passed in the said OS No. 140 of 2003, it
would be entitled to continue to possess the said property and in the event,
possession has been taken symbolically or otherwise, possession should be D
restored to the First Respondent.

The High Court, however, was not correct in dealing with the question
as to whether the decree passed in OS No. 140 of 2003 was collusive or not.
Such a question did not and could not have arisen before the Executing E
Court. The First Respondent also filed a suit which is pending. The question
may have to be decided in OS No. 381 of 2003 and OS No. 641 of 2003
which are still pending. Until there is a decree in favour of the assignor of
the Appellant in those suits, the compromise decree passed in OS No. 1220
of 1987 would have to prevail and prima facie, the title of the land is with
the First Respondent. We are, therefore, of the opinion that interests of justice F
will be subserved if, in modification of the order passed by the High Court,
both OS No. 381 of 2003 and OS No. 641 of 2003 are directed to be tried
jointly by a competent court. As the Appellant herein is a party in OS No.
641 of 2003, indisputably, all rival contentions could be gone into therein.

It is not necessary, as has been directed by the High Court, to reopen
G
the decree passed in OS No. 140 of 2003. The fate of the decree passed in
the said suit evidently would depend upon the outcome of the aforementioned
OS No. 381 of 2003 and OS No. 641 of 2003. We will, however, request the
concerned court to consider the desirability of disposing of the aforementioned
two suits as early as possible, preferably with a period of six months from H
~-
8 SUPREME COURT REPORTS [2006] 3 S.C.R.

A the date·ofcommunication of this order. The purported delivery of possession
in execution of OS No. 140 of 2003 will stand nullified and the possession
of the First Respondent is recognized subject to the result of OS Nos. 381 of
2003 and 641 of 2003. If necessary, the executing court will redeliver the
property to First Respondent, if applied for in that behalf.

B· This appeal is disposed of with the aforementioned directions. The
parties shall bear their own costs.

K.K.T. Appeal disposed of.
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