Madras High Court
A.Kumarasamy vs V.Palanisamy on 14 December, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.12.2018
Coram
THE HONOURABLE MR. JUSTICE M.V.MURALIDARAN
C.M.A.No.2984 of 2018
and C.M.P.No.22591 of 2018
A.Kumarasamy ... Appellant
Versus
V.Palanisamy ...Respondent
Prayer : The Civil Miscellaneous Appeal is filed under Order XLIII Rule 1(i) of
Code of Civil Procedure, against the Fair and Decretal order dated 26.11.2018
made in E.P.No.38 of 2017 in O.S.No.3 of 2017 on the file of the learned III
Additional District and Sessions Judge, Tiruppur at Dharapuram.
For Appellant : Mr.A.E.Ravichandran
JUDGMENT
The defendant in O.S.No.3 of 2017 and the Judgment Debtor in E.P.No.38 of 2017 is the appellant before this Court challenging the order dated 26.11.2018 passed in the E.P.No.38 of 2017 in O.S.No.3 of 2017 on the file of the learned III Additional District and Sessions Judge, Tiruppur at Dharapuram.
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2. It is the grievance of the appellant that based on the compromise made by both the plaintiff and defendant, the trial Court has passed the following order in O.S.No.3 of 2017:
jPu;g;ghiz 1/ thjp kPjp fpiuaj; bjhifahd U:/13.92.500-?I 20 ehspy;
ePjpkd;wjj;jpy; itg;gPL bra;a cj;jutplg;gLfpwJ/ 2/ thjpapd; bryt[ bjhifa[ld; brhj;ij msf;f 20 ehl;fSf;Fs;
Vw;ghL bra;J Kof;f cj;jutplg;gLfpwJ/ 3/ fpiuaj;ij 25 jpd;'fSf;Fs; gpujpthjp vGjpf; bfhLj;JtplL ; kPjp fpiuaj; bjhifia ePjpkd;wj;jpypUe;J bgw;W bfhs;s cj;jputplg;gLfpwJ/ 4/ ePjpkd;wf; fllzj;ij thjp KGtJk; bgw;Wf; bfhs;s cj;jutplg;gLfpwJ.
3. In view of the above, it is evident that the trial Court has directed the respondent/plaintiff to deposit the balance amount of Rs.13,92,500/- within a period of 20 days and measure the property within a period of 20 days on the cost of respondent / plaintiff and after deposit of the balance amount, the appellant /defendant was directed to execute the Sale Deed within a period of 25 days.
4. Pursuant to the Decree, the respondent/plaintiff deposited the amount whereas the respondent/plaintiff has not come forward to get execution of the Sale Deed in his favour, eventhough the appellant has sent a letter dated 18.04.2017 by stating that he was ready and willing to execute the http://www.judis.nic.in 3 Sale Deed as per the Decree. The said letter was also delivered on 19.04.2017 to the respondent/plaintiff. Thereafter, the respondent/plaintiff has filed the execution petition in E.P.No.38 of 2017 for executing the Decree passed in O.S.No.3 of 2017 dated 28.03.2017. The counter affidavit has also been filed by the appellant/defendant/Judgment Debtor in E.P.No.38 of 2017 by stating that since the trial Court has directed the appellant/defendant to get execution of the Sale Deed in his favour within a period of 25 days even after the letter sent by the appellant showing his ready and willingness to execute the Sale Deed, the respondent/plaintiff has not come forward to get the execution of the Sale Deed in his favour. Therefore, it is the case of the appellant/defendant that the Decree cannot be executed for the reason of disobedience of the decree of the trial Court in O.S.No.3 of 2017.
5. Considering the arguments advanced by both parties, the Executing Court has passed the Judgment in E.P.No.38 of 2017 dated 26.11.2018 by stating that once Decree has been passed, the judgment debtor cannot say his ready and willingness and apart from this, the Executing Court cannot go beyond the Decree except to execute the same.
6. Challenging the said order, the present Civil Miscellaneous appeal has been filed.
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7. Heard the learned counsel for the appellant and perused the materials available on record.
8. Admittedly, the case of the appellant/Judgment Debtor is that as per the decree dated 28.03.2017, the respondent/plaintiff has not come forward for getting execution of the Sale Deed in his favour within 25 days from the date of receipt of the balance sale consideration and hence, he has violated the Decree.
9.But, in my opinion, though he was ready to question the Decree for non compliance of the terms of the Decree passed in O.S.No.3 of 2017, the appellant/defendant must go before the Court concerned to challenge the Decree.
10.When the appellant has questioning about the validity of the execution of the decree on the ground that the respondent/plaintiff is violated the decree cause No.3, then the appellant/defendant must go before the concern Court to challenge the said decree in O.S.No.3 of 2017 and he cannot questioning the said violation by the respondent/plaintiff in the Execution Court, since the Execution Court is the only duty should execute the decree http://www.judis.nic.in 5 and cannot go beyond any limit.
11.It is the only case of the appellant/defendant that when the appellant has ready and willing to execute the sale deed and to prove that he has also sent a lawyer notice on 18.04.2017 which was also received by the respondent/plaintiff on 19.04.2017. The appellant cannot make the plea before the Executing Court, the decree cannot be executed for the violation of the decree. In fact, no law permits the Executing Court about the validity or violation of the Court decree except to executing the said decree. It is always open to the appellant/defendant to question the decree, but by way of separate proceedings before the competent Court.
12.Therefore, I am not inclined to entertain this appeal and the same is liable to be dismissed at the admission stage itself. But, this Court is inclined to give liberty to the judgment debtor to challenge the said decree in O.S.No.3 of 2017 dated 28.03.2017 for violation of the condition by the respondent/ plaintiff by way of separate civil proceedings.
13.In the result, I am inclined to pass the following orders:
(a) this Civil Miscellaneous Appeal is dismissed by confirming the order passed in E.P.No.38 of 2017 in O.S.No.3 of 2017 on the file of the learned III http://www.judis.nic.in 6 Additional District and Sessions Judge, Tiruppur at Dharapuram;
(b) the appellant/defendant is given liberty to challenge the decree in O.S.No.3 of 2017 dated 20.03.2017 for violation of the condition made in the decree by the respondent/plaintiff in the manner known to law.
14. With the above observation, this Civil Miscellaneous Appeal is dismissed. Consequently, connected Miscellaneous petition is closed. No costs.
14.12.2018 vs/vum Index : yes/no Speaking order/non-speaking order Note:Issue order copy on 11.02.2019 http://www.judis.nic.in 7 M.V.MURALIDARAN.J., vs/vum C.M.A.No.2984 of 2018 and C.M.P.No.22591 of 2018 14.12.2018 http://www.judis.nic.in 8 C.M.A.No.2984 of 2018 and C.M.P.No.22591 of 2018 M.V.MURALIDARAN, J.
When the matter was taken up for hearing it is being mentioned by the learned counsel for the petitioner that earlier this Court has disposed the above C.M.A and C.M.P. on 14.12.2018 by giving liberty to the petitioner to approach the competent Court. The relevant portion of the order is extracted hereunder:
10. When the appellant has questioning about the validity of the execution of the decree on the ground that the respondent/plaintiff is violated the decree cause No.3, then the appellant/defendant must go before the concern Court to challenge the said decree in O.S.No.3 of 2017 and he cannot questioning the said violation in the Execution Court, since the Execution Court is the only duty bound to execute the decree and cannot go beyond any limit.
12.(b) the appellant/defendant is given liberty to challenge the decree in O.S.No.3 of 2017 dated 20.03.2017 for violation of the condition made in the decree by the respondent/plaintiff in the manner known to law.
2.When the matter has been listed under the caption “for being mentioned” on the request made by the learned counsel for the appellant. The http://www.judis.nic.in 9 learned counsel for the appellant produced a Judgment copy of the Hon'ble Supreme Court reported in (1993) I Supreme Court Cases 581 BANWARI LAL vs CHANDO DEVI(SMT) (through lrs.) AND ANOTHER. and Para No.13 of the said Judgment is extracted hereunder:
“13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other than adjustment or satisfaction has been arrived at "the Court shall decide the question" , the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule .In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code in which he can now question the val9idity of the compromise in view of Rule-1-A of Order 43 of the Code.
3.Hence, in view of the above said Judgment this Court is inclined to grant liberty to the petitioner to approach the learned III Additional District http://www.judis.nic.in 10 Sessions Judge, Tiruppur at Dharapuram by filing appropriate application under Order 23 Rule 3 of C.P.C. or an appeal under Section 96(1) of the Code of Civil Procedure.
4.The learned III Additional District Sessions Judge, Tiruppur at Dharapuram is directed to consider the application if any filed under Order 23 Rule 3 of C.P.C. by the appellant on merits and pass appropriate orders, after giving notice to both parties.
18.12.2018 smn/vs Note:Issue order copy on 11.02.2019 http://www.judis.nic.in 11 M.V.MURALIDARAN, J.
smn/vs C.M.A.No.2984 of 2018 and C.M.P.No.22591 of 2018 18.12.2018 http://www.judis.nic.in