Madras High Court
N.S. Karuppanna Gounder vs Nagammal, Wife Of Subramanian And Anr. on 26 June, 1996
Equivalent citations: 1996(2)CTC1, (1996)IIMLJ470
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The above civil revision petition was filed against an order, dated 5.2.1990 in unnumbered E.A. No. of 1989 in O.S. No. 172 of 1973 on the file of the Subordinate Court, Mayiladuthurai. The said E.A., for delivery was dismissed by applying the principles laid down by this Court in the decision reported in Devendra v. Badrabagu, 1986 I.L.R. (2) Mad. 72 as barred by limitation. It was contended before the lower court that since delivery was already ordered within one year from the date when the sale became absolute in E.A. No. 333 of 1982, the present application was only to execute or give effect to that order of delivery and that therefore Article 134 of Limitation Act cannot have any application, for that Article only applies to an application for delivery and it does not apply when the application had already been ordered. According to learned counsel for the petitioner, Article 136 of the Limitation Act is the proper provision to be applied because that article applies not only to a decree but also to an order of a Court, which is an executable as a decree. The decision of V. Balasubramanyan, J. in the decision reported in Permal v. Ramachandra Padayachi, 1982 (I) MLJ 65 : 94 LW 674 was cited by the petitioner's counsel in support of his contention. The Lower Court however dismissed the said execution application. Aggrieved against the same, the above civil revision petition was filed by the petitioner/decree holder.
2. When the above civil revision petition was listed before Jagadeesan,J., the learned Judge directed the Registry to place the papers before the Honourable Chief Justice to get suitable orders to have the civil revision petition itself posted before a Division Bench, in view of the conflicting views. On 26-3-1996, Jagadeesan, J. passed the fallowing order and referred the matter to a Division Bench of this Court:
"The decree holder in O.S. No. 12 of 1973 on the file of Subordinate Judge's Court, Mayiladuthurai is the petitioner and the respondents arc judgment-debtors. The petitioner obtained a decree and in the execution petition, he purchased the property. The petitioner filed E.A. No. 333 of 1982 for delivery and the same was dismissed on 31-3-1983 though delivery was ordered by 19- 3-1982. Subsequently, the petitioner filed several E.As., for delivery and those applications were dismissed for non-prosecution even though delivery was ordered. The petitioner filed E.A., in September, 1989 seeking execution of the decree for delivery of possession by appointment of a receiver. The said application was dismissed by the lower Court. Against the same, the present C.R.P. has been filed, Though the respondents had been served, they have not chosen to appear cither in person or through counsel.
3. The counsel for the petitioner contended that the delivery was ordered as early as on 19-3-1982 but the order was not given effect to because of the non-assistance of the auction purchaser. Subsequent to that also, several applications had been filed for delivery and the same were ordered. Those applications were also dismissed for default in prosecuting the same. The present Application is not for delivery but is one to execute the order of delivery already passed i.e. as early as on 19-3-1982. It is contended that Article 136 of the Limitation Act is applicable to the present case and relied on a decision reported in Perumal v. Ramachandra Padayuchi, 1982 (2) MLJ 65, wherein it has been held that if the execution petition has been filed within one year and the delivery is ordered and due to sonic reason or other, delivery could not be effected, fresh application for delivery is maintainable and as such the lower court order has to be set aside. A reference is made in the order of the Lower Court to the judgment reported in Devendra v. Badrabagu, 1986 I.L.R. (2) 73 Mad. wherein the learned Judge held that the application for delivery of possession is made under Article 134 of the Limitation Act and hence within one year the possession ought to have been effected. Otherwise the decree holder or auction purchaser loses his rights. In view of the conflicting views, I am of the opinion that this matter may be decided by a Division Bench. Hence, I direct the Office to place the papers before my Lord, the Chief Justice and get suitable directions to have the C.R.P. posted before the Division Bench."
Pursuant to the direction of the Honourable Chief Justice, the civil revision petition is listed before us for resolution of controversy, by rendering an authoritative pronouncement.
4. The respondents though served through Court, they have not chosen to appear either in person or through counsel. The petitioner filed O.S. No. 172 of 1973 on the file of the Sub Court, Mayiladuthurai and obtained a preliminary decree against the respondents herein. The respondents did not prefer any appeal against the decree obtained by the petitioner. E.A. No. 333 of 1982 was filed on 13.3.1982 for delivery. The delivery was ordered on. 19.3.1982. However, the execution application was dismissed on 31.3.1983, as the auction purchaser had not assisted to effect delivery. Subsequently, E.A. No. 601 of 1982 was filed for delivery, which was ordered in that execution application on 9.6.1982. The said execution application was dismissed on 28.6.1982, as the plaintiff did not turn up to take possession. E.A. No. 787 of 1983 was filed for delivery. Even though delivery was ordered, the same could not be effected for want of police help. Therefore the said execution application was dismissed on 24.7.1984. E.A. No. 776 of 1985 was filed for delivery. The said execution application was dismissed on 20.8.1986, as not pressed. E.A. No. 393 of 1987 was filed for delivery and the same was dismissed on 26.10.1987, as batta was not paid. the last Execution Application No. 402 of 1988 was also dismissed in September, 1989. Thereupon the present application was filed for delivery of the petition mentioned property by appointing a receiver. As already seen, the immovable properties have been purchased by the petitioner at the Court auction sale held in E.P. No. 146 of 1981 in O.S. No. 172 of 1973 on the file of the Sub Court, Mayurain in execution of the decree in the Court of the District Munsif, Mayiladuthurai. The sale was confirmed on 9.11.1981 and sale certificate was also issued. Since the properties were in the occupation of the respondents/defendants, the petitioner filed E.A. No. 333 of 1982 and in the said execution application, the court made an order for delivery on 19.3.1982. A prayer was made to execute the order of delivery passed in B.A. No. 333 of 1982 on 19.3.1982 and put the petitioner in possession of the properties, and if need be by removing the persons, who refuse to vacate the same, as provided under Order 21, Rule 95 of the Code of Civil Procedure. This order of delivery had been passed within one year from the date when the sale became absolute (viz., 9.11.1981). It was therefore contended on behalf of the petitioner, the purpose of the execution application was served with the passing of the order of delivery and what remained thereafter was only the ministerial act to give effect to the said order for delivery, which is an executable order. Therefore the petitioner contended that Article 134 of the Limitation Act cannot have any application, for that Article only applies to an application for delivery. It docs not apply when the application had already been ordered and something has to be done with that order pursuant to that order. In this view, Article 134 of Limitation Act cannot have any application and Article 136 of the Limitation Act is the proper provision to be applied because that Article applies not only to a decree, but also to an order of a Court, which is an executable as a decree. There is nothing in Article 136 of the Schedule to the Limitation Act, 1963 which excludes such executable order from execution. In this view, it was urged that the present application must be regarded as having been filed within time under Article 136 of the Limitation Act, 1963 which provides a period of twelve years for execution of a decree or order by civil court.
5. Mr. K. Doraisami, learned Senior Counsel appearing for the petitioner drew our attention to the provisions of Articles 134 and 136 of the Limitation Act and also the decisions for and against the views reported in :
(i) Perumal v. Ramchandra Padayachi, 1982 (I) MLJ 65 : (1981) 94 LW 674
(ii) Mutha Pukhraj Ratnjee v. Ganesh Mull Adaji, 1983 (I) MLJ 443; and
(iii) Devendra v. Badrabagu, ILR 1986 (2) Mad. 72.
Article 134 of the Limitation Act, 1963 reads thus:
For delivery of possession by a | One year purchaser of immovable property | at a sale in execution of a decree. | When the sale becomes absolute.
This Article provides a period of limitation of one year for an application under Order 21, Rules 95 and 96, Civil Procedure Code by a purchaser for delivery of immovable property purchased in execution of a decree. This Article applies to all applications for delivery of possession by an auction purchaser whether he happens to be a stranger or the decree holder himself. The starting point of Limitation under this Article (the terminus a quo) is the date, when the sale becomes absolute. Article 136 of the Limitation Act, 1963 reads thus:
_____________________________________________________________________________ For the Execution of any decree Twelve years (When) the decree of order (other than a decree granting a becomes enforceable or mandatory injunction) or order where the decree of any of any Civil Court subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought taken place:
Article 136 of the Limitation Act is a specific Article requiring all applications for the execution of decrees and orders of Courts, there might be a succession of execution applications within the period prescribed by this Article. It is clear both from the Code of Civil Procedure and from the provisions of the Limitation Act of 1908 that the Legislature contemplated that there might be a succession of applications for execution. Execution is to carry into effect the order of Court of law. It is the enforcement of decrees and orders by process of Court to enable the decree holder to realise the fruits of the judgment in his favour. To execute a decree is to carry into effect the terms of the decree. The function of a Court executing a decree is to follow strictly the contents of the decree and give effect to the same. Ordinarily an executing Court must execute the decree according to its terms except when there is a statutory limitation upon the right to execute. The modes in which Courts can give relief in execution arc set forth in Order 21, Civil Procedure Code. In this case, the Execution Application was filed by the petitioner under Order 21, Rule 11 sub clause (2) of the Code of Civil Procedure. An Application 'to execute the decree' has to be understood as signifying an application under Order 21, Rule 11 of the Code of Civil Procedure or otherwise by which proceedings in execution are initiated or commenced. The period of limitation provided by this Article is restricted to applications for execution contemplated under Order 21, Rule 11, Code of Civil Procedure.
6. Now, we advert to the various views as expressed by learned Judges of tin's Court in the decisions more then once:
The earlier decision of this Court is referable to the case of Perumal v. Ramachandra Padayachi, 1982 (1) MLJ 65 : 1981 (94) LW 674 in which V. Balasubrahmanyan, J held that Article 136 of the Limitation Act was the proper provision to be applied, because that Article applied not only to a decree, but also to an order of a Court, which was executable as an order. the said view has been adopted by Ratnani, J (as he then was) in Mutha Pukhraj Rutanjee v. Ganesh Mul Adaji, 1983 (1) MLJ 443. Sathar sayeed, J a learned single Judge of this Court in Devendra v. Badrabagu, 19X6 ILR (2) Mad. 72 took a contrary' view. Learned Judge held that the only article that is applicable to an auction purchaser in Article 134 of the Limitation Act.
7. We shall now refer to the first decision reported in Perumal v. Ramachandra Padayachi, 1982 (I) MLJ 65. A money decree holder purchased the property of the judgment-debtor in execution sale. After continuation of sale in his favour, the decree holder purchaser applied to the executing court for delivery of property. The said application was filed within one year from the date of the order, when the sale was made absolute. On mis application of the decree holder, the executing court ordered delivery. For some reason or other, the purchaser could not succeed in obtaining actual delivery. Ultimately, the executing court dismissed the application filed by the decree holder. Subsequently, the auction purchaser moved the Court once again for delivery. Meanwhile, more than one year had passed from the date of continuation of sale. This time lag was taken advantage of by the judgment-debtor. He contended that the present application for deliver}' by the decree-holder was barred by limitation. He relied upon Article 134 of the Limitation Act, 1963. A petition was filed before this Court in order to have a pronouncement as to which was the correct view about 'limitation. It was argued on behalf of the decrees-holder that the decree-holder having obtained an order for delivery, the subsequent application filed by him cannot be regarded as an application for an identical relief, viz., for an order for delivery, for the simple reason that the Court had already passed an order for delivery. It was contended that Article 134 of the Limitation Act has no application, for that it only prescribes the time-limit for an application for deliver}' by a purchaser of an immovable property at an execution sale. It does not deal with an application filed by the purchaser to effectuate an order of deliver,' passed by the executing court. In other words, the purchaser's application, which is now in question, is not an application for delivery but an application for executing the order of delivery' already passed by the executing court, Therefore, Article 136 of the Limitation Act is the proper Article which prescribes the period of limitation for an application to execute cither a decree or an order passed by a Civil Court.
8. Learned counsel appearing for the judgment-debtor submitted that the contentions put forward on behalf of the decree holder are novel and opposed to the traditional manner, in which this question has been dealt with and disposed of by our Courts in the past. They cited, as illustrative cases, two Division Bench rulings of this Court in Sree Rajal Vadrevu Viswasundra Rao Bahadur v. Vannan Paidigadu, 1926 (50) MLJ 72 : 23 LW 472 : AIR 1926 Mad. 385 and also a decision of a single Judge of this Court reported in Nalluru Kottaya v. Narayana, 1943 (2) MLJ 450 : AIR 1944 Mad. 60. After considering the judgments cited before him, the learned Judge held that the purpose of the application was served with the passing of the order for delivery and what remained thereafter was only the ministerial act of putting into effect the said order for delivery. The learned Judge has further observed as follows:
....Likewise, an order for delivery passed in favour of an auction purchaser is an executable order. What the decree-holder-purchaser in each of these cases asks for is not an order for delivery, which ex hypothest, he had already obtained in the earlier application. He has approached the Court with the present application only for executing the earlier order for delivery passed by that very executing court. In this sense, therefore, Article 134 cannot have any application, for that ' Article only applies to an application for delivery. It does not apply when that application had already been ordered and some tiling has to be done with that order and pursuant to that order. In this view, Article 136 is the proper provision to be applied, because that Article applies not only to a decree but also to an order of a Court, which is executable as an order. There can be no doubt that an order for delivery passed by ail execution Court in favour of an auction purchaser is executable in the same way as a decree for possession is executable. It may be that in the very application filed by an auction purchaser for delivery, and as a follow up proceeding, the warrant of delivery may be successfully executed. But the law of limitation docs not prevent an independent and substantive application being filed to execute the order for delivery passed by an executing Court. There is nothing in Article 136 of the Schedule to the Limitation Act, 1963, which excludes such executable orders from execution.."
9. The next decision in the series is reported in Mutha Pukhraj Ratnjee v. Ganesh Mull Adaji, 1983 (I) MLJ 443 by Ratnam, J (as he then was) in CRP. No. 3934 of 1981, dated 25.11.1982. The above civil revision petition was filed at the instance of the decree-holder/auction purchaser against an order of the Court below in E.A. No. 5 of 1970, dismissing an application filed by him under Order 21, Rule 95 of the Code of Civil Procedure, praying for delivery of possession of the property. The decree holder, who obtained a decree filed an execution petition with view to realise the amounts due under the decree so obtained and for attachment and sale of the immovable property belonging to the judgment-debtor. The decree-holder, obtaining from the Court the leave to bid and set-off became the purchaser of the property at the sale held. After confirmation of sale in his favour, the decree holder applied for delivery of possession of the property purchased by him in the Court auction sale. The Court ordered delivery. Since the delivery warrant was not returned, the delivery could not be effected for want of police aid. 'The decree holder filed another application for police help. 'the said application was allowed mid the property was ordered to be delivered. Several other execution petitions were filed by the parties to the action in the meanwhile. Ultimately, the decree-holder filed H.A. No. 512 of 1980 and prayed for delivery of the property through Court. 'The said application was resisted by the judgment-debtor on the ground that the application was barred by time. The judgment-debtor further pleaded that the application was barred by limitation, as it was filed beyond six years after the confirmation of sale, under Article 134 of the Limitation Act. On the aforesaid grounds, the judgment-debtor had prayed for dismissal of the said execution application for delivery. "The learned District Judge, Chengalpattu who enquired into the said application dismissed the same, challenging the correctness of the said order, the decree-holder filed the civil revision petition before this Court. In this Court, it was submitted that execution application No. 61 of 1975 was closed on 29.4.1975 and no final order therein was passed and such closure could only be for statistical purpose and the subsequent application in E.A. No. 512 of 1980 was made only with view to draw the attention of the Court to the pendency of E.A. No. 61 of 1975 and to pass further orders thereon and, therefore, the application filed by the decree holder could only be in the nature of an application for revival or continuation of the proceedings in E.A. No. 61 of 1975 and that therefore, the present application should have been entertained and dealt with on merits. Learned counsel for the decree holder submitted that the application in E.A. No. 512 of 1990 was with a view to executing an order for delivery passed on 13.12.1975 in E.A. No. 61 of 1975 and that such an application can be made within the time prescribed under Article 136 of the Limitation Act viz., 12 years from that date and that therefore the application made in E.A. No. 512 of 1980 was well within time. Reliance was placed upon by learned counsel for the decree holder in Shanbagavalli Ammal v. Damodaran, 1981 (94) LW 674 ; 1982 (I) MLJ 65. On the otherhand, learned counsel for the judgment-debtor contended that the application in E.A. No. 512 of 1980 having been filed only on 22nd April, 1980 would be out of time as per Article 134 of the Limitation Act. On a careful consideration of the entire materials placed before him and all the Judgments cited by either side, learned Judge came to the conclusion that the order passed on 29th April, 1975 in E.A. No. 61 of 1975 cannot be considered to have finally determined the right of the petitioner to obtain delivery of possession of the property purchased by him. In that sense, the application in E.A. No. 61 of 1975 must be still deemed to be pending and the subsequent application filed by the petitioner in E.A. No. 5I2 of 1980 was only in the nature of a reminder to the Court drawing its attention to the pendency of E.A. No. 61 of 1975 and requesting the Court to take the necessary steps to deliver effective possession of the property to the petitioner. Learned Judge has further held that Article 134 or any other Article has no application for making such an application. Learned Judge has also held that from the order made in E.A. No. 61 of 1975 on 29.4.1975, it is established beyond doubt that there was no disposal of that application on that date, but there was only a closure or striking off for statistical purposes and therefore the subsequent application filed by the petitioner in E.A. No. 512 of 1980 would be in the nature of an application reminding the Court to proceed with the earlier application for delivery and such an application would also be well in time.'
10. While referring to the decision of this Court in Perumal v. Ramachandra Padayachi, 1982 (1) MLJ 65, learned Judge has held as follows:
"That leaves for consideration in the alternative contention raised by the learned counsel for the petitioner based on the decision of this Court in Perumal v. Ramchandra Padayachi, 1982 (1) MLJ 65. There also, the' auction purchaser got an order for delivery, but was not successful in obtaining actual delivery either because the warrant was returned unexecuted, due to. obstruction, or the property, was found locked. Ultimately, the applications for delivery were dismissed by the executing court. Thereafter, the purchaser again moved the executing court for delivery of possession, as one of the properties was no longer under lock and key and. the obstruction in the other was. removed. However, by the time, the second application was filed, more than a year had passed since the confirmation of the sale. A plea was, therefore, raised that Article 134 of the Limitation Act would apply and that plea was upheld by the Court below with reference to one of the cases and rejected in relation to the other. Both the matters were dealt with together by Balasubrahmanyan, J. as they related to a decision on an identical question of limitation. While; pointing out that the Indian Limitation Act 1963 has done way with the old time, ideas of revival, continuation; step in aid ect, the learned Judge was of the view that the proper Article which would be applicable even in a case, where there had been an earlier order for delivery is Article 136, as, that Article applied not only to a decree, but also to an order of Court which is 1; executable as an order. In this view, learned Judge held that the, subsequent applications for, delivery were in time, haying been filed, within a period of 12 years from the respective, dates on which the earlier orders for delivery were made. Accordingly, in one of the cases viz., CRP. No. 709 of 1980, where the lower Court had ordered delivery had been dismissed by the lower Court, the learned Judge reversed that order and directed delivery. Against, the order passed in CRP. No. 709 of 1980, the petitioners therein preferred a petition for special leave to appeal (Civil No. 6438 of 1981) before the Supreme Court of India, challenging the correctness of that order and that petition was dismissed by the Supreme Court on 28th, August, 1981. In view of the confirmation of the order, passed by this Court in CRP. No. 709 of 1980 by the Supreme Court of India it must be taken that in the incident case also Article 136 of the Limitation Act, 1963 can be applied to the, order for delivery passed earlier in E.A. No. 61 of 1975 on 13th February, 1975 and if so done, within 12 years thereafter, the-petitioner can seek to enforce the order for delivery by means of an application in E.A. No. 512 of 1980 on or before 13th February, 1987. In this view also, E.A. No. 512 of 1980 having been filed on 22nd April, 1980 cannot be slated to be barred by limitation."
11. In Devendra v. Badrabagu, 1986 ILR (2) Mad. 72, Sathar Sayced, J. had observed that under Article 134 of the Limitation Act, the period for recovery of possession is one year and that the order of delivery in the execution application cannot exist in the eye of law beyond the period of the final disposal of the execution application, since it was dismissed for non-payment of batta and where owing to the default or laches of the auction purchaser delivery of possession could not be effected, the Court would be justified in dismissing the application for delivery of possession even though an order for delivery has been made. That apart the only Article that is applicable to an auction purchaser to take delivery of possession is Article 134 of the Limitation Act. Learned Judge further observed that after the dismissal of the execution for non-payment of batta, the subsequent application filed to restore the previous application cannot be entertained, since the decree-holder had failed to prosecute the same and that therefore there cannot be a second application for delivery. We are unable to subscribe or affix our seal of approval to the views expressed by Sathar Sayeed, J. in the Judgment in Devendra v. Badrabagu, 1986 ILR (2) Mad. 72. We are of the firm view that Article 136 of the Limitation Act should receive a fair and liberal and not a technical construction with a view to enable the decree holder to reap the fruits of his decree and it will not be in consonance with the principles of just interpretation to strain the language of the Article in favour of the judgment-debtor who had not paid his just dues. As already seen, this Article is a specific article requiring all the applications for the execution of decrees or orders, where the decree-holder acquires a vested right under the decree and that right ought not to be taken away except under a clear and unambiguous enactment. In the present case it is not in dispute that the order of delivery has been passed within one year from the date when the sale became absolute viz., on 9.11.1981. E.A. No. 333 of 1982 was filed on 13.3.1982 for delivery and the delivery was ordered in that application on 19.3.1982. 'The said application was dismissed on 31.3.1983, as auction purchaser had not assisted to effect delivery. Therefore, the very purpose for which E.A. No. 333 of 1982 was filed (for delivery) was served with the passing of the order of delivery and what remained thereafter was only the ministerial act of putting into effect of the said order for delivery. It is also to be noted that there is no period of limitation for reminding the Court to do its ministerial act of completing delivery of possession pursuant to the order passed for delivery of possession. Even viewed otherwise, that the order directing delivery of possession required to be executed as per the law of limitation, Article 136 of the Limitation Act is the only proper provision to be applied because that Article applies not only to a decree, but also to an order of Court, which is executable as a decree. It is also not in dispute that the first petition was filed in time. As observed by this Court in Perumal v. Ramchandra Puduyachi, 1981 (1) MLJ 65 what the decree holder purchaser sought for is not an order for delivery which ex hypothesi, he had already obtained in the earlier application. Therefore, he had approached the Court with the present application for executing the earlier order for delivery passed by that very executing court. Therefore, Article 134 of the Limitation Act has no application as it applies only to an application for delivery. It does not apply when that particular application had already been ordered and something had to be done with that order or pursuant to that order. In this view, Article 136 of the Limitation Act was the proper provision to be applied, because it applied not only to a decree but also to an order of a Court, which was executable as an order. Since the execution application was filed well within time, it must be regarded as an application to execute the earlier order of delivery duly passed by the executing court.
12. As observed by Ratnani, J. in the decision reported in Mutha Pukhraj Ratnjee v. Ganesh Mull Adaji, 1983 (I) MLJ 443 it must be taken that the subsequent application cannot be said to be barred by limitation (paragraph 13). Civil Revision Petition Nos. 347 of 1977 and 709 of 1980 Perumal v. Ramchandra Padayachi, 1981 (I) MLJ 65 were taken up on appeal to the Supreme court by one of the revision petitioners in CRP No. 709 of 1980, challenging the correctness and validity of the order. The said SLP. No. 6438 of 1981 was dismissed by the supreme Court on 28.8.1981. In view of the confirmation of the order passed by this Court in C.R.P. No. 709 of 1980 by the Supreme Court of India, it must be held that Article 136 of the Limitation Act alone can be applied to the order for delivery passed earlier.
13. In view of the foregoing discussions, we hold that the conclusion reached by Salhar Sayeed, J. in Devendra v. Badrabagu, ILR 1986 (2) Mad. 72 that the only Article that is applicable to an auction purchaser to take delivery of possession is Article 134 of the Limitation Act, does not lay down the law correctly. It is therefore overruled. We agree with the view expressed by Ratnam, J in the decision reported in Mutha Pukhraj Ratnjee v. Ganesh Mull Adaji, 1983 (I) MLJ 443 and Balasubrahmanyan, J in the decision reported in Perumal v. Ramchandra Padayachi, 1981 (I) MLJ 65, which was confirmed by the Supreme Court in Special Leave Appeal (Civil) No. 6438 of 1981 (dated 26.8.1981).
14. In the result, this civil revision petition is allowed. The order in the unnumbered E.A. No. of 1989 in O.S. No. 172 of 1973 on the file of the Sub Court, Mayiladuthurai dated 5.2.1990 is set aside and the said Court is directed to deal with the same in accordance with law and in the light of this order. However, there will be no order as to cost.