Madras High Court
B.K. Jinnah vs K.P. Krishnan on 13 August, 1993
Equivalent citations: (1994)1MLJ255
ORDER Abdul Hadi, J.
1. The judgment-debtor in E.P.No.23 of 1992 in O.S. No. 33 of 1985 on the file of Sub-Court, Tuticorin, has come forward with this revision petition. The said E.P. is for executing the specific performance decree obtained in the said suit by the respondent-plaintiff. The said E.P. was filed for execution of the sale deed pursuant to the decree. The impugned order in the abovesaid E.P. is dated 19.11.1992.
2. Even at the outset, I must state that a certified copy of fair order in the said E.P. has not been produced at all by the revision petitioner, even though it has been held by this Court that the production of such copy of the fair order cannot be dispensed with. Anyway, going into the merits of the case, I find from the certified copy of the E.P. petition and orders thereof, filed by the petitioner that on 19.11.1992, the following order has been passed. "Expenses paid. For production of fair deed 7.12.1992".
3. The submission of the learned Counsel for the petitioner is that before ordering the decree-holder to produce the fair sale deed the court below should have followed the procedure prescribed under Order 21, Rule 34(i), C.P.C. The relevant portion of the said rule runs as follows:
(i) Where a decree is for the execution of a document - and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document - and deliver the same to the court.
(ii) The court shall thereupon cause the draft to be served on the Judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in his behalf.
(iii) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(Italics of the word 'may' is mine).
The submission of the learned Counsel for the petitioner is that the abovesaid procedure has not been followed by the court that. Instead, it has straightway ordered for the production of fair sale deed and that the decree-holder had not filed any draft sale deed and the draft sale deed has also not been served on the Judgment-debtor as required under Sub-rule (ii) thereof. But I find that Sub-rule (i) only says that the decree-holder "may prepare a draft" and the relevant word used is only may and not" shall. "That means if the decree-holder does not prepare the draft and deliver the same to the court, there is no scope for, the court below to follow the other procedure prescribed in the subsequent sub-rules, including Sub-rule (ii). So, the contention of the learned Counsel for the petitioner has no merits.
4. Even assuming that when the court below ordered "production of fair deed", it only meant production of draft sale deed and not fair sale deed, then the question of following the procedure prescribed in the abovesaid Sub-rule (ii) would only come after 19.11.1992. But the impugned order is only 19.11.1992. So looking it from that angle also no exception can be taken to the impugned order dated 19.11.1992. Therefore, there is no merit in the civil revision*petition and it is dismissed with costs.