Madras High Court
Govindan vs Savithiri on 17 June, 2022
1 C.R.P(NPD).No. 1318 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE K.KUMARESH BABU
C.R.P.(NPD).No. 1318 of 2016
and C.M.P.No.7395 of 2016
Govindan ... Petitioner
Vs
1.Savithiri
2.Nagan … Respondents
Prayer: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code to set aside the order of the learned District Munsif of
Krishnagiri, dated 06.11.2015 in R.E.P.No.44 of 2015 in O.S.No.242 of
2005.
For Petitioner : Mr.V.Nicholas
For Respondents : No appearance
ORDER
The instance revision has been filed challenging the order dated 06.11.2015, passed in R.E.P.No.44 of 2015 in O.S.No.242 of 2005, on the file of the learned District Munsif of Krishnagiri, wherein the petition has been allowed to execute the sale deed.
https://www.mhc.tn.gov.in/judis 2 C.R.P(NPD).No. 1318 of 2016
2. Heard Mr.V.Nicholas, learned counsel appearing on behalf of the petitioner.
3. The 1st respondent, who is the decree holder, has been served with a notice. Inspite of notice being served to the respondent, the respondent has not entered appearance and her name has been printed in the cause list. Today, when the case was taken up for hearing she has been called absent.
4. The case of the petitioner is that the 1st respondent herein has filed a suit seeking for specific performance of an agreement of sale which was decreed ex-parte vide order dated 06.01.2006. The trial Court by its judgment stated supra had directed the 1st respondent/ plaintiff to deposit the balance amount within a period of one month. It is the further case of the petitioner/ 1st respondent that the 1st respondent filed an application for execution on 29.04.2015, after a period of nine years from the date of the judgment. The petitioner had also filed an extract of the ledger indicating that the 1st respondent had deposited the balance sale consideration only on 01.04.2015 which is well beyond the stipulated time made in the judgment dated 06.01.2006. The deposit made by the 1st respondent could not have been accepted without any specific order made extending the time limit by the Court below. As a reading of the judgment would reveal that the suit https://www.mhc.tn.gov.in/judis 3 C.R.P(NPD).No. 1318 of 2016 has been decreed as prayed for and a direction has been made to the 1st respondent/ plaintiff to deposit the amount within a period of one month and hence, the suit decreed is a conditional decree and the failure of the 1st respondent/ plaintiff to comply with the condition within the specific time would not entitle the 1st respondent to execute the decree. It is the further case that the executing Court without considering the facts of the case has grossly committed an error by recording that it is a contested decree and that the respondent has deliberately failed to execute the Sale Deed and allowed the petition, without considering the submissions made by the petitioner.
5. I have considered the arguments made by the learned counsel appearing on behalf of the petitioner and perused the materials available on record.
6. In my considered opinion, the learned trial Judge has not applied his mind at all. As rightly, pointed out by the learned counsel for the petitioner, the judgment and decree in O.S.No.242 of 2005 dated 06.01.2006 is a ex-parte decree. However, the learned Judge has recorded in the present impugned order that the contested decree has been passed which was sought to be enforced in the execution proceedings. It is for the https://www.mhc.tn.gov.in/judis 4 C.R.P(NPD).No. 1318 of 2016 learned Judge to explain as from where he has come to an conclusion that it is a contested decree.
7. Further it is also seen that the application was filed on dated 29.04.2015 for execution and it has been returned with an endorsement indicating that the decreed amount has to be deposited and the payment receipt has to be enclosed. The said defect was complied with and represented on 09.06.2015. After the notice, the petitioner herein had also filed his counter resisting the execution on various grounds indicating the non-compliance of the direction issued by the trial Court in respect of the balance consideration. The Court below has miserably failed to consider any of the objections raised by the petitioner and had blamed the petitioner in deliberately failing to execute the sale deed, which is also without any basis.
8. Hence, this Court, the fair and decreetal order made in R.E.P.No.44 of 2015 in O.S.No.242 of 2005 dated 06.11.2015, is set aside remitting the matter back to the Court below, which shall consider the objections raised by the petitioner in his counter affidavit dated 22.09.2015 and pass orders afresh within a period of eight weeks from the date of receipt of a copy of this order.
https://www.mhc.tn.gov.in/judis 5 C.R.P(NPD).No. 1318 of 2016
9. Accordingly, this Civil Revision petition is allowed. No costs. Consequently, connected miscellaneous petition is also closed.
17.06.2022 gba To The District Munsif Court, Krishnagiri.
https://www.mhc.tn.gov.in/judis 6 C.R.P(NPD).No. 1318 of 2016 K.KUMARESH BABU, J.
gba C.R.P.(NPD).No. 1318 of 2016 and C.M.P.No.7395 of 2016 17.06.2022 https://www.mhc.tn.gov.in/judis