Madras High Court
K.T.V.Handloom Centre vs Srinivasa Investments on 20 December, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD)(MD)No.583 of 2008 and C.R.P.(NPD)(MD)No.713 of 2008 and M.P(MD)Nos.1 and 2 of 2008 C.R.P.(NPD)(MD)Nos.583 of 2008: 1.K.T.V.Handloom Centre, represented by its Partner, Ramamurthy. 2.K.V.Ramamurthy 3.K.K.Ramachari 4.K.R.Rajamani ... Petitioners/Petitioners/ Respondents/Defendants Vs. Srinivasa Investments, represented by its Managing Partner, K.G.Ramasamy. ... Respondent/Respondent/ Petitioner/Plaintiff Prayer Petition filed under Section 115 of the Code of Civil Procedure, to set aside the order and decree dated 19.04.2007 passed in E.A.No.19 of 2007 in E.P.No.65 of 2006 in O.S.No.232 of 2004, on the file of the Additional District Court (Fast Track Court No.I), Thanjavur. !For Petitioners... Mr.R.Vijayakumar ^For Respondent ... Mr.V.Santharaman * * * * * C.R.P.(NPD)(MD)Nos.713 of 2008: K.K.Ramachari ... Petitioner/3rd Respondent/ 3rd Defendant Vs. 1.Srinivasa Investments, represented by its Managing Partner, K.G.Ramasamy. ... 1st Respondent/Petitioner/ Decree Holder 2.K.T.V.Handloom Centre, represented by its Partner, Ramamoorthy. 3.K.V.Ramamoorthy 4.K.R.Rajamani ... Respondents 2 to 4/ Respondents 1, 2 and 4/ Defendants Prayer Petition filed under Section 115 of the Code of Civil Procedure, to set aside the order dated 08.02.2008 passed in E.P.No.65 of 2006 in O.S.No.232 of 2004, on the file of the Additional District Court (Fast Track Court No.I), Thanjavur. For Petitioner ... Mr.R.Vijayakumar For Respondents ... Mr.V.Santharaman for R.1 * * * * * :COMMON ORDER
C.R.P(PD)(MD)No.583 of 2008 has been filed to get set aside the order and decree dated 19.04.2007 passed in E.A.No.19 of 2007 in E.P.No.65 of 2006 in O.S.No.232 of 2004, on the file of the Additional District Court (Fast Track Court No.I), Thanjavur.
2. C.R.P(PD)(MD)No.713 of 2008 has been filed to get set aside the order dated 08.02.2008 passed in E.P.No.65 of 2006 in O.S.No.232 of 2004, on the file of the Additional District Court (Fast Track Court No.I), Thanjavur.
3. Heard both sides.
4. Compendiously and concisely, the germane facts absolutely necessary for the disposal of both the Civil Revision Petitions would run thus:
(i) Srinivasa Investments represented by its Managing Partner, K.G.Ramasamy, is the decree holder in respect of a money decree. E.P.No.65 of 2006 was filed by the decree holder for attaching the immovable property described therein and for selling the same in the process of recovering the decreetal dues. The partnership firm, namely, the K.T.V.Handloom Centre and its Partner, K.V.Ramamurthy, K.K.Ramachari and K.R.Rajamani, were arrayed as the judgment debtors in the E.P. In response to the E.P. notice, the judgment debtors entered appearance and thereafter, attachment was ordered and effected in respect of the property described in the schedule of the plaint.
(ii) The Executing Court on 12.10.2007, passed orders as under:
"12.10.2007.
2-tJ vjph;kDjhuh; jhf;fy; bra;Js;s kWg;g[iuapy; jhth bjhiff;F tl;otpfpjk; fzf;fpl;lJ rhpapy;iy vd;Wk;> tHf;fwpQh; Cjpak; fzf;fpl;lJ rhpapy;iy vd;Wk;> kDtpy; fz;l brhj;J 4 vjph;kDjhuh;fSf;Fk;> ghj;jpag;gl;ljy;y vd;Wk;> 1-tJ vjph;kDjhuUf;Fk;> 4-tJ vjph;kDjhuUf;Fk; kD brhj;jpy; ahbjhU chpika[k; ,y;iy vd;Wk;> jPh;g;g[fldhspfis jtpu kw;w rpyUf;F kDbrhj;jpy; chpik ,Uf;fpwJ vd;Wk;> kD brhj;jpd; tpguk; kDtpy; rhpahf bfhLf;fg;gltpy;iy vd;Wk;> Twpa[s;shh;. 2-tJ vjph;kDjhuh; jug;gpy; kWf;fg;gl;Ls;s rq;fjpfSf;Fhpa tpguj;ij 2-tJ vjph;kDjhuh; jd;Dila kWg;g[iuapy; Twhky; kDtpy; fz;Ls;s rq;fjpfs; rhpay;y vd;W kWg;g[ Twg;gl;Ls;sJ Vw;Wf;bfhs;s ,ayhJ. Vdnt kD mDkjpf;fg;gLfpwJ. kDjhuh; tpw;gidf;Fhpa Mtzq;fis jhf;fy; bra;a tha;jh 5.11.2007."
(iii) Subsequently, it so happened that the sale papers were filed and the Court ordered test and sale notice. Thereafter, the respondents 1 and 2 were set exparte after such sale notice having been served on them and that there was no appearance. However, the respondents 3 and 4, on receipt of the sale notice, entered appearance and filed their counter affidavits. Subsequently, the respondents 1 and 2 filed an application to get set aside the exparte order, but no statement of objections was enclosed along with the said E.A. to get set aside the exparte order passed after sale notice.
(iv) Whereupon the Court after setting aside the exparte order passed in the E.P., proceeded with it for conducting the auction sale. In the meanwhile, C.R.P.(PD)(MD)No.713 of 2008 was filed challenging and impugning the act of the Court in proceeding with the E.P., without giving due opportunity to the third judgment debtor - K.K.Ramachari to participate in the enquiry in the E.P., on various grounds.
(v) Even before filing of the C.R.P(PD)(MD)No.713 of 2008, one other revision petition in C.R.P(PD)(MD)No.583 of 2008, was filed by all the judgment debtors contending that the numbering of the E.P., and taking it up by the Fast Track Court directl, was bad in law. E.A.No.19 of 2007 was filed in E.P.No.65 of 2006 by the judgment debtors challenging the jurisdiction of the Court to entertain the said E.P., straightaway and in that application, the Court passed orders dismissing the said E.A. Being aggrieved by and dissatisfied with the same, C.R.P(PD)(MD)No.583 of 2008 has been focussed on various grounds.
(vi) The learned Counsel for the revision petitioners in the Civil Revision Petitions, would pyramid his arguments thus:
The Fast Track Court is not an independent Court. It is the Principal District Court , Thanjavur, alone is the competent Court to number all proceedings such as, Original Suit and Execution Petition and only the Principal District Court has got the powers to make over the cases to the Additional District Courts and Fast Track Courts. While so, even though the Fast Track Court passed a decree in O.S., it had no jurisdiction to entertain E.P.No.65 of 2006 and process it.
(vii) Such argument was advanced by the learned Counsel for the revision petitioners in respect of E.P.No.65 of 2006.
(viii) The same learned Counsel for the revision petitioners, would advance his arguments in C.R.P(PD)(MD)No.713 of 2008, which could tersely and briefly be set out thus:
The property attached is a joint family property belonging to various persons. Over and above that, out of the four judgment debtors, only the judgment debtors 2 and 3 are having some shares in the suit property. The fourth judgment debtor is not at all having any share in the said property. However, the Court ignoring the same, simply proceeded to bring the entire property for sale without conducting enquiry on that aspect. Hence, he prays for interference in revision.
5. Per contra, the learned Counsel for the respondent/decree holder in a bid to slap down and pulverise the arguments on the side of the revision petitioners, would advance his arguments thus:
(i) The Fast Track Court No.I, Thanjavur, is admittedly and undeniably the Court which passed the decree and in such a case, as per Section 38 of the Code of Civil Procedure, that Court is having power to execute the decree. Numbering of the E.P., is an internal and administrative matter with which the judgment debtor need not bother. There is no question of E.P., being made over by the Principal District Judge to some other Judge. Once E.P., is presented to the Court Office, it should be listed before the Court which passed the decree.
(ii) The property was brought for sale and at that time, no statement of objections were filed detailing and delineating all the facts relating to the shares. Now, the fourth judgment debtor's husband filed a claim petition which is pending before the Executing Court. Accordingly, he would pray for the dismissal of both the Civil Revision Petitions.
6. The points for consideration are:
(i) Whether the Fast Track Court No.I, Thanjavur, can maintain a separate E.P., Register of its own and number the E.Ps., filed in respect of the decree passed by it for executing it as per the Code of Civil Procedure?
(ii) Whether the Executing Court without considering the counter affidavit filed by the judgment debtors, simply proceeds with the sale of the E.P., mentioned property?
Point No.(i)
7. I would like to extract hereunder Section 38 of the Code of Civil Procedure, which would unambiguously and unequivocally, pellucidly and palpably make the point clear that the Court which passed the decree has got the right to execute it:
"Section 38. Court by which decree may be executed.- A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."
8. I recall the legal maxim "Parum est latam esse sententiam nisi mandetur executioni." [It is not enough that judgment has been given if it is not committed to execution.]
9. Accordingly, the Court which passed the decree is having inherent jurisdiction to execute it and in such a case, it is beyond doubt that the Fast Track Court No.I, Thanjavur, is having the power to execute the decree.
10. The question of the Fast Track Court No.I, Thanjavur, alone maintaining the E.P., Register and numbering it, can never be found fault with it by the judgment debtors. It is none of the business of the judgment debtors to find fault with, it as it is only the internal procedure of the Court and the supervisory authority is the High Court.
11. However, the learned Counsel for the revision petitioners would try to explain and expound by pointing out that had the E.P., been filed before the Principal District Judge, then he might have made over the E.P.., to some other Judge also and not to the same Judge who passed the decree. Such an argument is neither here nor there, for the simple reason that while the Fast Track Court No.I, Thanjavur, which passed the decree is very much functioning, the question of the Principal District Judge making over that E.P., to some other Court is a well neigh impossibility legally. However, exercising his power under Section 24 of the Code of Civil Procedure is entirely a different matter with which this Court is not concerned now. Accordingly, I hold the Point No.(i) in favour of the decree holder and as against the revision petitioners.
Point No.(ii)
12. Both sides in unison, without any contradiction between themselves, would unambiguously and unequivocally highlight and spotlight the fact that the fourth judgment debtor's husband filed a claim petition which is pending before the Court relating to the suit property. I would like to point out that even de hors the said application, once it is brought to the notice of the Executing Court that the suit property, according to the learned Counsel for the decree holder, stands in the names of the judgment debtors 2 and 3 and the husband of the fourth judgment debtor, there is no knowing of the fact as to how the Executing Court could proceed to sell the entire property and that remains unanswered and it is for the Executing Court to concentrate on that point.
13. However, the learned Counsel for the revision petitioners would go a step further and submit that the suit property is not only belonging to the said judgment debtors 2 and 3, but also it belongs to as many as ten persons as it is a joint family property.
14. At present, I am not going to decide all those facts and it is beyond the scope of these Civil Revision Petitions. Be that as it may, I would like to direct the Executing Court to consider all these aspects and pass a discerning order while disposing of the E.A., filed by the husband of the fourth judgment debtor. Accordingly, the Point No.(ii) is answered.
15. On balance, both the Civil Revision Petitions are disposed of. Consequently, the connected Miscellaneous Petitions are closed. No costs.
16. On hearing the pronouncement of the order, the learned Counsel for the decree holder would make an extempore submission that suitable direction may be given to the Executing Court to dispose of the matter within a time frame. Accordingly, I would mandate that the Executing Court shall do well to see that the matter is disposed of within a period of two months from the date of receipt of a copy of this order.
rsb To The Additional District Court (Fast Track Court No.I), Thanjavur.