Madras High Court
K.P.Solai vs M.Selvam on 3 January, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 10.10.2018
Pronounced on : 03.01.2019
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRP (PD) (MD) No.2014 of 2018
and
CMP(MD)No.8916 of 2018
K.P.Solai ... Petitioner/Respondent/Defendant
Vs.
M.Selvam ...Respondent/Petitioner/Plaintiff
Prayer : Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order
passed in E.P No.31 of 2018 in O.S No.44 of 1997 on the file of
the Principal Sub Judge, Pudukottai dated 14.08.2018 by allowing
the revision petition with costs.
For Petitioner : Mr.V.Srinivasan
For Respondent : Mr.M.Selvam, party in person.
http://www.judis.nic.in
2
ORDER
This civil revision petition is directed against the order dated 14.08.2018 made in E.P No.31 of 2018 in O.S No.44 of 1997 on the file of the Principal Sub Court, Pudukottai. The revision petitioner herein is the judgment debtor. The case of the revision petitioner is that E.P No.31 of 2018 filed by the respondent herein deserves to be dismissed as it suffers from the vice of limitation bar. Admittedly, the decree in O.S No.44 of 1997 was passed as early as on 21.09.1999. Therefore, the present execution petition which has been filed in the year 2018 is obviously out of time.
2.According to the learned counsel appearing for the petitioner, the court below erred in not dismissing the execution petition. The learned counsel for the petitioner would place reliance on the decision of this Court reported in 2016 (2) MWN (Civil) 730 (V.G.Naidu @ Govindasamy Naidu).
3.No doubt, the contentions raised by the petitioner's counsel are formidable. But, I am unable to accept the same for the simple reason that the very filing of E.P No.40 of 2000 was in http://www.judis.nic.in 3 terms of the direction given in CRP (PD) (MD) No.319 of 2018 on 20.06.2018. The respondent herein filed O.S No.44 of 1997 on the file of the Principal Sub Court, Pudukkottai for recovering a certain sum of money from the revision petitioner, The suit was decreed on 21.09.1999. It is relevant to note here that the revision petitioner had filed his written statement opposing the suit claim. The revision petitioner did not question the decree. It had become final. Since the revision petitioner did not satisfy the decree, the respondent herein filed E.P No.40 of 2000. The said E.P suffered a dismissal on 31.07.2017 on the ground that the property mentioned in the E.P did not belong to the revision petitioner. Questioning the dismissal of the execution petition, the respondent herein filed CRP (MD)No.319 of 2018. In the said civil revision petition, the revision petitioner herein was served but he did not enter appearance. The said civil revision petition was dismissed on 20.06.2018, but then in the following terms :
“6.Now, when the petitioner has filed a miscellaneous petition praying to file an amendment petition in the Execution Petition, with an alternative prayer of arrest, considering the case of the petitioner, I am inclined to pass the following order:-
http://www.judis.nic.in 4 “This Civil Revision Petition is dismissed and the alternative relief sought for by the petitioner is allowed. The petitioner is directed to file a fresh Petition within a period of two weeks from the date of receipt of a copy of this order with an alternative prayer to arrest of the respondent / the judgment debtor. On such filing of the petition, the execution Court is directed to consider and dispose of the same within a period of four weeks thereafter.”
4.Thereafter, the present E.P No.31 of 2018 was filed by the respondent herein. In the said execution petition, the revision petitioner filed a counter. The court below allowed the E.P by holding that the filing of the E.P was authorised by the order of the High Court in the aforesaid CRP. No exception can be taken to the order impugned in this civil revision petition. The revision petitioner had filed an additional counter also before the executing court. In the said additional counter, the revision petitioner had specifically alleged that the plaintiff/decree holder had obtained an order in CRP (PD) (MD)No.319 of 2018 by suppression of material facts and that he is taking steps to have the same reviewed.
Thus, the revision petitioner/judgment debtor is aware that so http://www.judis.nic.in 5 long as the order in EP No.31 of 2018 stands, maintainability of the execution petition cannot be questioned. Admittedly, as on date, the order dated 20.06.2018 in CRP(MD)No.319 of 2018 is holding the field.
5.The decree holder filed the execution petition within time. The decree can be enforced by attaching the property of the judgment debtor or by securing his arrest. The endeavour of the decree holder to secure the attachment of the property did not succeed. Therefore, he ought to he permitted to avail the alternative mode by applying for arrest of the judgment debtor. The plaintiff did opt for such a course of action. It was this Court that directed the decree holder to file a fresh petition instead of pursuing the amendment application. Hence, the decree holder cannot be thrown out on the ground of limitation bar. This is a case in which the legal maxim “Actus curiae neminem gravabit” deserves to be applied. The act of the court shall harm none. The decree holder shall not come to grief for having followed the direction passed by this Court. In view of the facts and circumstances of this case, this court construes E.P No.31 of 2018 http://www.judis.nic.in 6 not as a fresh petition filed out of time but rather as a continuation of E.P No.40 of 2000. The court below approached the issue from a correct perspective. It does not warrant any interference. This civil revision petition deserves to be dismissed. It is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
03.01.2019 Skm To
1.The Principal Sub Judge, Pudukottai.
2.The Record Keeper, V.R.Section, Madurai Bench of the Madras High Court, Madurai. http://www.judis.nic.in 7 G.R.SWAMINATHAN, J.
Skm CRP (PD) (MD) No.2014 of 2018 and CMP(MD)No.8916 of 2018 03.01.2019 http://www.judis.nic.in