Madras High Court
Periya Essaki Muthu vs Shajahan on 1 June, 2020
Author: P.Velmurugan
Bench: P.Velmurugan
C.R.P(MD) No.500 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 01.06.2020
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
C.R.P(MD) No.500 of 2020
and C.M.P(MD)No.3138 of 2020
1.Periya Essaki Muthu
2.Chinna eassaki Muthu
3.Karpakavalli
4.Easakiammal ... Petitioners/Petitioners/
Respondents/Defendants
Vs.
Shajahan
...Respondent/Respondent
Petitioner/Plaintiff
PRAYER: The Civil Revision Petition is filed under Section 115 of C.P.C
against the fair order and decreetal order passed in E.A.No.1 of 2020 in E.P.
No. 17 of 2013 in O.S.No.28 of 2013 dated 05.03.2020 on the file of the
Principal Sub-Judge, Tenkasi.
For Petitioners : Mr.Balamohan Thambi
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O R DE R
This Civil Revision Petition has been filed by the petitioners/
defendants against the fair order and decreetal order passed in E.A.No.1
of 2020 in E.P. No. 17 of 2013 in O.S.No.28 of 2013 dated 05.03.2020 on the
file of the Principal Sub-Judge, Tenkasi. The respondent herein is the
plaintiff in O.S.No.28 of 2003.
2. According to the plaintiff, a sale agreement was entered into
between the plaintiff and the father of the defendants on 20.08.1998. On
that day itself, the father of the defendants handed over the document
dated 22.01.1981 to the plaintiff. As per agreement, total sale consideration
was Rs.1,00,00/-. During agreement period, the father of the defendants
received Rs.90,000/-. It is agreed that remaining amount of Rs.10,000/-
should be paid on or before 20.11.1999 and in the event of payment of
Rs.10,000/-, sale deed should be executed in favour of the plaintiff. Though
the plaintiff was willing to act as per the agreement, the father of the
defendants did not co-operate. While so, he died in the year 2002. After his
demise, the defendants were also not willing to execute a sale deed. Hence,
the plaintiff has filed the suit in O.S.No.28 of 2013 for specific performance
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of contract for sale before the learned Principal Subordinate Judge, Tenkasi.
The plaintiff was examined himself as P.W.1 and 7 documents were
produced as Ex.P.1 to Ex.P.7. On 28.03.2003, an ex-parte decree was passed.
The trial court has directed the defendants to execute a sale deed on
receiving the remaining sale consideration, within a period of one month.
3. The plaintiff filed an Execution Petition in E.P.No.17 of 2013. The
defendants have filed their counter. After hearing the arguments on either
side and perusing the materials, the learned Principal Subordinate Judge,
Tenkasi, has allowed the Execution Petition on 13.03.2015. Challenging the
said order, the defendants have filed C.R.P(MD)No.1639 of 2015 before
this Court. By its order dated 26.09.2019, this Court has allowed the Civil
Revision Petition and set aside the order passed in E.P.No.17 of 2013.
Further, this Court remanded the matter and directed the Principal Sub
Judge, Tenkasi, to hear E.P.No.17 of 2013 in O.S.No.28 of 2003 afresh and
pass a speaking order.
4. After remand, the defendants have filed E.A.No.1 of 2020 under
Section 28(1) of the Specific Relief Act, 1963 and Section 151 C.P.C to
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declare the sale agreement dated 20.08.1998 as null and void since the
plaintiffs have not paid Rs.10,000/- within 31.03.2003 and has not deposited
the amount into court. After perusing the records and hearing the
arguments made by both sides, the learned Principal Subordinate Judge,
Tenkasi dismissed E.A. No. 1 of 2020. Against the said order, the petitioner
has filed the present Civil Revision Petition.
5. The learned counsel appearing for the petitioners/defendants
would submit that property is a residential property and the decree itself is
an ex-parte decree. Further the trial court, while passing the decree,
directed the respondent/plaintiff to pay the balance sale consideration of
Rs.10,000/- on or before 31.03.2003. The respondent/plaintiff failed to pay
the said amount within the stipulated time and therefore, he is not entitled
to get sale deed and the sale agreement itself was not in force. Therefore,
the petitioners have filed E.A.No.1 of 2020 under Section 28(1) of Specific
Relief Act, 1963 and Section 115 of C.P.C for cancellation of sale agreement
dated 20.08.1998.
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6. According to the learned counsel for the petitioners, the learned
Principal Subordinate Judge, Tenkasi, ought to have considered that the
respondent has not paid the balance amount of Rs.10,000/- directly to the
petitioners or deposited the money into the court within the stipulated
time i.e on or before 31.03.2003 and further, the respondent has not filed
an application for extension of time. He would strenuously argue that since
the respondent has not complied with direction issued by the trial while
issuing decree, he is not entitled for execution of decree.
7. In support of his contention, the learned counsel for the petitioner
has relied on the judgment of the Hon'ble Supreme Court of India in
2 0 1 5 ( 2) C T C 5 5 9 (in P. R. Ye l u m a l a i V s . N .M. R avi) and the
judgment of this Court dated 20.03.2017 in C . R. P(MD)N o. 1 2 2 o f 2 0 1 8
a n d 5 5 2 t o 5 5 4 a m d 1 6 2 4 o f 2 0 1 6 . Relying on the said judgments,
the learned counsel for the petitioners submitted that in the absence of
compliance of the decree, the decree holders are not entitled for getting
relief of execution of decree. According to the learned counsel, in the
present case also, the respondent has neither paid the amount specified in
the decree nor filed any application for extension of time. In view of the
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law laid down by the Hon'ble Supreme Court of India, the respondent is
not entitled for decree to be executed. The lower court has failed to
consider the legal preposition of law and therefore, the same needs to be
interfered by this Court.
8. Heard the learned counsel for the petitioner and perused the
entire materials available on record.
9. It is seen from the records that the respondent/plaintiff has filed
the suit in O.S.No.28 of 2003 against the petitioners for specific
performance. The said suit was decreed on 28.02.2003 as prayed for. The
prayer in the suit is that as per the sale agreement dated 20.08.1998, except
the amount of Rs.90,000/-, which was paid earlier, the defendants have to
receive Rs.10,000/- and to execute a sale deed in favour of the plaintiff
within the time stipulated by the court, failing which, the sale deed may be
executed through court. As an alternate relief, the defendants shall pay
advance amount of Rs.90,000/- with interest within the time stipulated by
the court. The defendants shall pay the costs also.
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10. In this case, a careful perusal of the record would show that the
respondent filed Execution Petition in E.P.No.17 of 2013. In that Execution
Petition, the respondent herein filed a lodgement schedule before the
Executing Court and they also deposited money. Now the balance sale
consideration of Rs.10,000/- is in the court deposit. The Execution Petition
was allowed and if the petitioners failed to execute the sale deed, the court
has to execute the sale deed in favour of the respondent. At that time, the
petitioners herein filed a Civil Revision Petition in C.R.P.(MD)No.1639 of
2015. On 26.09.2019, this Court has set aside the order passed in E.P.No.17
of 2013 and directed the Executing Court to hear E.P.No.17 of 2013 afresh
in accordance with law. Thereafter, the petitioners herein have filed an
application in E.A.No.1 of 2020 in E.P.No.17 of 2013 under Section 28(1) of
Specific Relief Act, 1963 and Section 115 of C.P.C seeking cancellation of
sale agreement dated 20.08.1998 since the respondent has not complied
with the decree passed on 28.02.2003 by paying the balance consideration
of Rs.10,000/- within 31.03.2003.
11. As already stated, the decree is of the year 2003 and the
respondent filed Execution Petition in the year 2013. The respondent has
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deposited balance consideration before the court. Of course, the
respondent has not filed any application for extension of time. However, he
sought for lodgment schedule and the court has also issued lodgment
schedule. As per the lodgment schedule issued by the court, the
respondent has deposited the balance amount of Rs.10,000/- and the same
is in the court deposit. The petitioners herein have filed a counter in E.P.No.
17 of 2013 in the year 2014 itself. The petitioners have not filed any
application in earlier occasion to deposit the amount which was received as
an advance. However, it is to be noted that as per sale agreement, total sale
consideration is Rs.1,00,000/-. Out of one lakh, Rs.90,000/- i.e almost 90% of
sale consideration is said to have been paid and that has not been
challenged by the petitioners herein either by way of appeal against the
decree or an application to set aside the ex-parte decree. No doubt, the
respondent filed Execution Petition only after 10 years i.e in the year 2013
and the petitioners soon after receiving notice in the Execution Petition
neither repaid the sale consideration which was said to have been received
by the petitioners nor took any steps to deposit the amount before the
Court. Therefore, both the petitioners and the respondent have not
complied the court's order in the first instance.
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12. After filing of Execution Petition by the respondent in the year
2013, a counter was filed by the petitioners in 2014. At that time, the
balance sale consideration was also paid by the respondent before the
court. After six years of payment of balance sale consideration, the
petitioners have filed E.A.No.1 of 2020 under Sections 28(1) of Specific
Relief Act, 1963 and Section 115 of C.P.C. The Executing Court allowed the
Execution Petition. This Court has set aside the said order passed by the
Executing Court in C.R.P(MD)No.1639 of 2015. However, when the matter
was remanded back to the Executing Court to consider afresh, the
petitioners have not contested the Execution Petition. Now they filed an
application in E.A.No.1 of 2020.
13. Further, total consideration is Rs.1,00,000/- and out of one lakh,
Rs.90,000/- is said to have been paid. Only balance sale consideration is
Rs.10,000/-. Even though the respondent has not approached the court
immediately, they filed Execution Petition in the year 2013 and the court
has allowed him to deposit the amount and that amount was also
deposited. Therefore, the petitioners have neither approached the court
soon after 31.03.2003 nor immediately after filing of Execution Petition.
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Considering the fact that the petitioners are said to have received major
portion of sale consideration and the balance consideration is only meagre
portion i.e Rs.10,000/- i.e 10% of sale consideration, this Court does not find
any perversity in the order passed by the Executing Court.
14. There is no quarrel with the legal preposition of law laid down by
the Hon'ble Supreme Court of India. In that case. Advance amount itself is
only minor portion and major portion has to be paid. But in this case, the
petitioners have already said to have received major portion of sale
consideration and balance amount is only minor portion i.e 10%. The
petitioners have blamed the respondent for not approaching the court in
time. The petitioners have also failed to approach the court within a
reasonable time. In these circumstances, this Court finds that the citations
referred by the learned counsel for the petitioner are not applicable to the
present case on hand.
15. In fine, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is also dismissed. However,
the Executing Court is directed to dispose E.P.No.17 of 2013 on merits as
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C.R.P(MD) No.500 of 2020
already directed by this Court in C.R.P(MD)No.1639 of 2015. While
disposing E.P.No.17 of 2013, the court below shall not be influenced by any
of the observations made by this Court in the present revision petition.
01.06.2020
Index : Yes/No
Internet: Yes/No
CM
To,
The Principal Sub-Judge, Tenkasi.
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C.R.P(MD) No.500 of 2020
P.VELMURUGAN., J.
CM C.R.P(MD) No.500 of 2020 and C.M.P(MD)No.3138 of 2020 01.06.2020 12/12 http://www.judis.nic.in