Madras High Court
Vijaya vs Elumalai (Died) on 10 December, 2020
Author: P.Rajamanickam
Bench: P.Rajamanickam
CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2020
CORAM:
THE HON'BLE MR.JUSTICE P.RAJAMANICKAM
CRP(PD)Nos.3284 and 3285 of 2015
and
MP.No. 1 of 2015
CRP(PD)Nos.3284 and 3285 of 2015
1. Vijaya
2. Gunasekaran
3. Mathiazhagan
4. Jothi
5. Sudha ... Petitioners
Vs.
Elumalai (died)
1. Ramachanderan
2. Ashokan
3. Jayapal
4. Senthamarai
5. Kaliammal
6. Sumathi
7. Krishnan
Ramar (died)
Vembu (died)
8. Pachaiammal
9. Valaiyapathi
https://www.mhc.tn.gov.in/judis/
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CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5
10. Muthulingam
11. Kanagaraj
12. Senguttu
13. Shanthi
14. Vengatachalam
15. Adhimoolam
16. Kaliammal
17. Thirumalai Ammal
18. Thulasi Ammal
19. Usha
20. Dilip (minor)
21. Saranya (minor)
(minors represented by
Ramachanderan and Father and
Guardian) ... Respondents
( Respondents 8 to 21 given up)
Prayer in CRP(PD)No.3284 of 2015 : Civil Revision Petition is filed
under Section 227 of the Constitution of India, to set aside the order
recording delivery of possession and termination of proceedings dated
27.07.2015 passed in EP.No.6 of 2012 in OS.No.57 of 1995 on the file of
the Principal District Munsif Cum Judicial Magistrate, Vanur.
Prayer in CRP(PD)No.3285 of 2015 : Civil Revision Petition is filed
under Section 227 of the Constitution of India, to set aside the order
dated 27.07.2015 passed in EA(SR) No.1682 of 2015, in EP.No.6 of
2012 in OS.No.57 of 1995 on the file of the Principal District Munsif
Cum Judicial Magistrate, Vanur.
https://www.mhc.tn.gov.in/judis/
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CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5
CRP(PD)Nos.3284 and 3285 of 2015
For Petitioners : Ms.S.P.Arthi
For Respondents : Ms.Gayathri
for Mr.P.B.Ramanujam
COMMON ORDER
CRP.(PD)No.3284 of 2015 has been filed by the Judgment Debtors 14 to 18 against the order passed by the District Munsif-cum- Judicial Magistrate, Vanur, Tindivanam District in EP.No.6 of 2012 in OS.No.57 of 1995 dated 27.07.2015.
CRP.(PD)No.3285 of 2015 also has been filed by the Judgment Debtors 14 to 18 against the order passed by the District Munsif-cum- Judicial Magistrate, Vanur, Tindivanam District in EA (SR) No.1682 of 2015 in EP.No.6 of 2012 in OS.No.57 of 1995 dated 27.07.2015.
2. The respondents 1 to 8 herein had filed an execution petition in EP.No.6 of 2012 to execute the decree passed in OS.No.57 of 1995 on the file of the District Munsif-Cum-Judicial Magistrate, Vanur for https://www.mhc.tn.gov.in/judis/ 3/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 delivery of possession. In the said execution petition, the petitioners herein were set exparte and consequently delivery was ordered and thereafter, delivery has been effected and EP has been terminated on 27.07.2015. In the meanwhile, the petitioners herein had filed an application to set aside the exparte order passed in the said EP along with a petition under Section 5 of the Limitation Act read with Section 151 of CPC to condone the delay in filing the petition to set aside the exparte order. The learned District Munsif cum Judicial Magistrate, Vanur had returned the said applications on 22.07.2015 as “how the said applications are maintainable”. Thereafter, the petitioners have re- presented the said petitions and the learned District Munsif-cum- Judicial Magistrate, Vanur again returned the petitions on 27.07.2015 with the following endorsement:
“ 27.07.2015 As per Order 0.21 Rule 106 of CPC, an Application under Order 21 Rule 106(1) of CPC shall be made within thirty days from the date of the order, or wherein the case of an exparte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order. Hence Returned” .
https://www.mhc.tn.gov.in/judis/ 4/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5
3. The learned District Munsif-cum-Judicial Magistrate after returning the petition filed under Section 5 of the Limitation Act and also the petition to set aside the exparte order, passed an order terminating the execution petition.
4. Feeling aggrieved with the order passed in execution petition terminating the execution petition, the judgment debtors 4 to 18 have filed CRP.No.32884 of 2015 and they also filed CRP.No.32845 of 2015 against the order of return passed by the learned District Munsif-cum-
Judicial Magistrate, Vanur dated 27.07.2015.
5. Heard Ms.S.P.Arthi, the learned counsel for the petitioners and Ms.Gayathri for P.B.Ramanujam, the learned counsel for the respondents.
6. The learned counsel for the petitioners has submitted that in view of the decision of this Court in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt Ltd., rep by its Branch Manager/Foreman, Tiruvarur 2011 (6) CTC 268, executing court could condone the delay in filing https://www.mhc.tn.gov.in/judis/ 5/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 petition under proviso to sub rule (3) of Rule 105 of Order 21 CPC as amended by this Court (Madras High Court), but without considering the said provision and also the aforesaid decision, the executing court had mechanically returned the application which was filed to condone the delay in filing the petition to set aside the exparte order passed in the aforesaid execution petition. She further submitted that it is well settled that the courts should not reject the application on the ground that a wrong provision of law has been quoted. She further submitted that in the delivery warrant returned by the court Ameen, it is not specifically stated that the judgment debtors had handed over the possession of the property to him and as such, the executing court should not have recorded as ' delivery effected ' and terminated the execution petition. She further submitted that since the petitioners are having valid defence in the execution petition, the executing court should not have prevented the petitioners from agitating the execution petition and therefore, she prayed to allow these Civil Revision Petitions and set aside the orders passed by the executing court in the un-numbered EA and also in EP.No.6 of 2012 in OS.No.57 of 1995 dated 27.07.2015. https://www.mhc.tn.gov.in/judis/ 6/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5
7. Per contra, the learned counsel for the respondents 2 to 8 /decree holders has submitted that the petitioners, after receipt of notice, wilfully not appeared before the executing court and after waiting for passing order against them to deliver the properties, with an intention to drag on the proceedings, they have filed the petition to set aside the exparte order along with the petition under Section 5 of the Limitation Act to condone the delay in fling the said petition. She further submitted that Section 5 of the Limitation Act clearly says the said provision will not apply to execution proceedings and inspite of such an express bar, the petitioners have willfully and wantonly filed a petition to condone the delay by mentioning the provision of Section 5 of the Limitation Act. She further submitted that even in the decision cited by the learned counsel for the petitioners it is not stated that Section 5 of the Limitation Act will apply to set aside the exparte order passed in execution proceedings. On the contrary, it is stated that in the said judgment the executing court would condone the delay in filing application under proviso to sub rule (3) as amended by this court and therefore, it cannot be said that the executing court has committed any mistake or passed any wrong order. She further submitted that the executing court had returned https://www.mhc.tn.gov.in/judis/ 7/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 the said petition pointing out that Section 5 of the Limitation Act will not apply and in such a case, if the petitioners wanted to rely upon the aforesaid decision, they should have re-presented the petitions before the executing court by citing the said judgment and also mentioning the correct provision of law and instead of that, they hurriedly rushed to this court as if the executing court had committed mistake or passed wrong order. She further submitted that already the executing court had recorded delivery of possession, based on the report submitted by the court Ameen and the respondents 1 to 8 are in possession of the property for the past five years and at this stage, if these petitions are allowed that would cause prejudice to the respondents and therefore she prayed to dismiss these Civil Revision Petitions.
8. A perusal of the typed set of papers filed by the petitioners shows that the respondents 1 to 8 herein had filed a suit in OS.N.57 of 1995 on the file of the District Munsif, Vanur to declare their title over the suit property and for recovery of possession. The learned trial court had dismissed the said suit on 02.09.2009 and as against the same, the respondents 1 to 8 herein had filed an appeal in AS.No.67 of 2009 on the https://www.mhc.tn.gov.in/judis/ 8/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 file of the Principal Sub Judge, Tindivanam and the learned Sub Judge by the Judgment dated 07.03.2012 had allowed the said appeal and set aside the judgment and decree passed by the trial court and decreed the suit as prayed for and directed the defendants therein to hand over the possession of the property within two months. Thereafter, the respondents 1 to 8 had filed an execution petition in EP.No.6 of 2012 on the file of the District Munsif-cum-Judicial Magistrate, Vanur to execute the decree for the delivery of possession. In the said EP, notice was sent to the petitioners herein and after receipt of the said notice, they entered appearance and took time for filing counter, but, subsequently, they did not file counter and hence, they were set exparte and delivery was ordered on 08.06.2015.
9. The petitioners herein had filed a petition under Order 21 Rule 106 of CPC to set aside the exparte order which was passed against them on 08.06.2015 in the above EP. They also filed another petition under Section 5 of the Limitation Act to condone the delay of 14 days in filing the petition to set aside the exparte order. The learned District Munsif initially returned the said petition by saying how the said https://www.mhc.tn.gov.in/judis/ 9/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 petitions are maintainable and thereafter, the counsel for the petitioners has simply re-presented the said petitions with an endorsement “ complied with represented” . Thereafter, the executing court again returned the said petitions on 27.07.2015 with the following endorsement:
“ 27.07.2015 As per Order 21 Rule 106 of CPC, an application under Order 21 Rule 106(1) of CPC shall be made within thirty days from the date of the order, or wherein the case of an exparte order, the notice was not duly served, within thirty days from the date. When the applicant had knowledge of the order. Hence Returned” .
10. If the petitioners felt that in view of the aforesaid decision of this court the executing court is having power under the proviso to sub-rule (3) of Rule 105 of Order 21 CPC as amended by this court to condone the delay in filing the petition to set aside the exparte order, they should have represented the said petitions by mentioning the said provisions of law and also brought to the knowledge of the court, the aforesaid decision of the court but instead of doing so, they rushed to this court and filed this Civil Revision Petition as if the executing court https://www.mhc.tn.gov.in/judis/ 10/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 committed mistake or passed wrong order.
11. In N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt Ltd., rep by its Branch Manager/Foreman, Tiruvarur (cited supra) this court did not say Section 5 of the Limitation Act will apply in execution proceedings. On the contrary, in the said judgment, it is stated that in view of the proviso inserted under sub-rule (3) of Rule 105 of Order 21 of CPC by the Madras High Court Amendment with effect from 01.11.1972, the executing court is having power to condone the delay in filing petition to set aside the exparte order passed in execution proceedings. But in this case the petitioners herein have not represented the said petitions by mentioning the correct provision of law and also brought to the knowledge of the execution court the aforesaid decision. Therefore, this Court does not find any infirmity in the order passed by the executing court returning the said petitions.
12.In so far as the order passed by the executing court recording delivery of possession and terminating the execution proceeding is concerned, since the petitioners herein remained exparte in https://www.mhc.tn.gov.in/judis/ 11/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 the execution petition and unless they were permitted to participate in the said execution proceedings, they cannot question the said proceedings. In this case, the executing court had returned the petitions filed by the petitioners pointing out that Section 5 of the Limitation Act will not apply to the executing proceedings. Therefore, the petitioners cannot question the order of the executing court with regard to the termination of EP.
13.Considering the facts that the executing court had returned the delay execution petition on the ground that Section 5 of the Limitation Act will not apply to the execution proceedings, in view of the decision of this court in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt Ltd., rep by its Branch Manager/Foreman, Tiruvarur (cited supra) the executing court is having power to condone the delay in execution proceedings as per the Proviso inserted under sub-rule (3) of Rule 105 of Order 21, by the Madras High Court Amendment, in order to give an opportunity to the petitioners, this court is inclined to allow this CRP.No.3285 of 2015 on terms. In so far as the CRP No.3284 of 2015 is concerned unless the exparte order is set aside against the https://www.mhc.tn.gov.in/judis/ 12/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 petitioners herein in EP, they cannot question the recording of delivery of possession and terminating execution petition. Therefore, the said Civil Revision Petition is liable to be dismissed.
14. In the result, CRP.No.3284 of 2015 is dismissed. No costs. CRP.No.3285 of 2015 will be allowed on payment of Rs.5,000/- to the respondents 1 to 8 herein either directly or through their counsel who appeared before the trial court within three weeks from the date of receipt of a copy of this order, failing which, CRP.No.3285 of 2015 shall stand dismissed automatically without further reference to the court. If the petitioners comply with the aforesaid direction within the aforesaid time, the executing court is directed to permit the petitioners herein to represent the aforesaid petitions by mentioning the correct provisions of law within a week thereafter number the said petitions and dispose of the same after giving opportunity to both sides in accordance with law.
10.12.2020 Vv Note: The Registry is directed to return the documents to the petitioners to enable them to re-present the same before the executing court.
https://www.mhc.tn.gov.in/judis/ 13/14 CRP(P D). N o s 3 2 8 4 a n d 3 2 8 5 of 2 0 1 5 P.RAJAMANICKAM.J., Vv To The Principal District Munsif Cum Judicial Magistrate, Vanur C.R.P(PD)Nos.3284 and 3285 of 2015 and MP.No.1 of 2015 10.12.2020 https://www.mhc.tn.gov.in/judis/ 14/14