← Library
Madras High CourtA/3913/2017allowed

S.V.R.Saroja v. S.V.Mathaprasad

2017-12-12Honourable Mr Justice C.V. Karthikeyan6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 12TH DAY OF DECEMBER 2017 THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN A.No.3913 of 2017 in EP.No.48 of 1997 in C.S.No.43 of 1962 C.S.No.43 of 1962 :

1.S.V.Ramakrishna Mudaliar 2.S.V.Matha Prasad Both plaintiff residing at No.471, Poonamallee High Road, Kilpauk, Madras.

..Plaintiffs Vs.

1.Mrs.Rajabu Fathima Buhari 2.A.M.B.Buhari both Defendants residing at No.57, Second Main Road, Gandhi Nagar, Adyar, Madras.

..Defendants E.P.No.48 of 1997 :

S.V.Mathaprasad, No.20, Bajanaikoil Street, Rajakilpakkam, East Tambaram, Chennai 73 ..Petitioner/Decree Holder/2 nd Plaintiff Vs.

1.Mrs.Rajaby Fathima Buharai (dead) by LRS 2.A.M.Buhari (dead) by LRS 3.Mohammed Basheer Buhari (Dead) by LRS

4.Mrs.Zubeida Hamid 5.Mr.Mohammed Farook 6.Mrs.Maimeena Jamal 7.Haja Mohideen Buhari 8.Abdul Coder Buhari 9.Mrs.Mumtaj Buhari (2 to 9 are legal heirs of 1 st J.D residing at "Imperial Hotel", No.5, Gandhi Irvin Road, Egmore, Madras-8 10.Mrs.Shahira Bahseer W/o Deceasd Mohammed Bahseer Buhari 11.Mrs.Fazeelath Siraj, 12.Mrs.Mahajubdeen Ibrahim D/o Mohammed Basheer Buhari 13.Haja Abdul Nazeer 14.Mrs.Farzaa Malik 15.Haja Anwar Murad 16.Mrs.Zeenath Yusuf 17.Haja Amed Imitaz 18.Haja Mohammed Sameer 19.Miss.Roshanara Begam (10 to 19 are legal heirs of 3 rd J.D residing at No.L-15, 27 th Cross Street Besant Nagar, Madras 600 090) 20.A.M.D.Buhari ..Respondents/Lrs of the Def.No.1&2/Judgment Debtors A.No.3913 of 2014 :

1.S.V.R.Saroja 2.S.V.R.Vijaya 3.S.V.R.Ramprasad

4.S.V.R.Renuka Devi all are residing at No.L-17/71, th Street, Anna Nagar East, Chennai 600 102 ..Applicants/Respondents Vs.

1.S.V.Mathaprasad No.20, Bajanaikoil St., Rajakilpakkam, East Tambaram, Chennai-73 ..Respondent-1/Petitioner/ Decree Holder/2 nd Plaintiff 2.Mrs.Rajaby Fathima Buharai (dead) by LRS 3.A.M.Buhari (dead) by LRS 4.Mohammed Basheer Buhari (Dead) by LRS 5.Mrs.Zubeida Hamid 6.Mr.Mohammed Farook 7.Mrs.Maimeena Jamal 8.Haja Mohideen Buhari 9.Abdul Coder Buhari 10.Mrs.Mumtaj Buhari (2 to 9 are legal heirs of 1 st J.D residing at "Imperial Hotel", No.5, Gandhi Irvin Road, Egmore, Madras-8 11.Mrs.Shahira Bahseer W/o Deceasd Mohammed Bahseer Buhari 12.Mrs.Fazeelath Siraj, 13.Mrs.Mahajubdeen Ibrahim D/o Mohammed Basheer Buhari 14.Haja Abdul Nazeer 15.Mrs.Farzaa Malik 16.Haja Anwar Murad 17.Mrs.Zeenath Yusuf

18.Haja Amed Imitaz 19.Haja Mohammed Sameer 20.Miss.Roshanara Begam (10 to 19 are legal heirs of 3 rd J.D residing at No.L-15, 27 th Cross Street Besant Nagar, Madras 600 090) 21.A.M.D.Buhari ..Respondents 2-21/Lrs of the Def.No.1&2/Judgment Debtors Application praying that this Hon'ble Court be pleased to pass an order withdrawing the proceedings in EP.No.48 of 1997 on the file of the Learned Master, Original Side, High Court, Madras and transfer the same to the file of this Hon'ble Court for adjudication in accordance with law.

This application coming on this day before this court for hearing the court made the following order:

This application has been filed, seeking to withdraw the proceedings in EP.No.48 of 1997 on the file of the Master, Original Side, High Court, Madras and transfer the same to the file of this Court for adjudication in accordance with law.

2. It is seen that the Applicants are on record as copetitioners in EP.No.48 of 1997 along with the 1st Respondent. Originally, S.V.Ramakrishnan and S.V.Mathaprasad had filed CS.No.43 of 1962 against Mrs.Rajabu Fathima Buhari and A.M.B.Buhari. This Court, by judgement dated 10.11.1965, had decreed the suit. The matter went up to the Honourable Supreme Court, wherein in Civil

Appeal No.224 of 1974, by judgement dated 17.4.1995, the Honourable Supreme Court had modified the decree passed by the learned Single Judge of this Court in CS.No.43 of 1962 and directed the learned Single Judge of this Court to execute the required documents.

3. Since the Court has to re-examine the issues, it would be highly inappropriate on the part of this Court to go into the merits of this case, but it would be fruitful to extract the judgement of the Honourable Supreme Court as follows:- "1. That the judgement and order dated 10 th May, 1972 of the Division Bench of the High Court of Judicature at Madras in OSA.Nos.8 and 9 of 1966, be and is hereby set aside and the judgement and decree for specific performance dated 10 th November 1965 passed by the Single Judge of the said High Court in Original Suit No.43 of 1962 be and is hereby restored.

2. It is hereby directed that the Respondents herein or their successors in interest would re-convey the property mentioned in Schedule A of the plaint within a period of one month from this the 17 th April 1995, failing which it would be to the trail Judge (Single Judge) of the aforesaid High Court to execute the required documents. "

4. It is under these circumstances that this application has been filed to withdraw EP.No.48 of 1997, which is now pending on the file of the Master, and to transfer to the file of this Court.

5. The learned counsel for the Respondent has raised objections that the application has been filed nearly after 20 years. However, it is seen that the EP can be proceeded only after the judgement of this Court delivered in TOS.No.2 of 2009, in which also, the same parties have been litigating over the same properties.

6. The order of the Honourable Supreme Court is to be followed in letter and spirit and when the Honourable Supreme Court had directed that the learned Single Judge of this Court has to adjudicate the issues raised in the execution petition, it is only just and proper that the matter is transferred as prayed for. Even the High Court has every power to transfer the execution petition to the file of this case. In the instant case, when there being specific directions of the Honourable Supreme Court that it is only the learned Single Judge of this Court who should examine the issues, it is only natural that the Court is bound by such direction.

7. Consequently, this application is allowed and EP.No.48 of 1997 is withdrawn from the file of the Master and transferred to the file of this Court. The Registry is directed to make necessary steps for such withdrawal of the EP.No.48 of 1997 from the file of the Master and transfer of the same to the Original Side of this Court. No costs.

Sd/.C.V.K.J 12.12.2017 //Certified to be a true copy// Dated this the day of 2018.

TR/8.5.2018 COURT OFFICER(OS) From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.