Madras High Court
G.Suresh Mohan vs S.Lilly on 23 July, 2010
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.1242 of 2010 and M.P.No.1 of 2010 G.Suresh Mohan ... Petitioner vs. 1. S.Lilly 2. G.Senthilnathan ... Respondents (R2 given up) This civil revision petition is filed under Section 115 of CPC against the fair order dated 22.02.2010 made in E.P.No.59 of 2008 in O.S.No.145 of 2006 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai. For Petitioner : Mr.N.Manoharan For R1 : Mr.A.K.Kumarasamy ORDER
Animadverting upon the order dated 22.02.2010 passed in E.P.No.59 of 2008 in O.S.No.145 of 2006 by the learned District Munsif-cum-Judicial Magistrate, Perundurai, this Civil Revision Petition is focussed.
2. Heard both sides.
3. Broadly but briefly, narratively but precisely, the relevant facts absolutely necessary and germane for the disposal of this revision would run thus:
The respondent herein filed the suit in O.S.No.145 of 2006 and obtained a decree for recovery of possession in respect of an immovable property as against the revision petitioner herein. Subsequently, the respondent filed E.P.No.59 of 2008 for enforcing the decree. In the meantime, the revision petitioner/defendant filed the appeal with the application to get the delay of 225 condoned and that application is still pending in the Sub Court, Perundurai. In the meanwhile, counter was filed by the revision petitioner herein before the Executing Court and after hearing both sides, the Executing Court ordered delivery. Being aggrieved by and dissatisfied with the said order, this revision has been filed on various grounds.
4. The learned counsel for the revision petitioner, reiterating the grounds of revision would advance his arguments, which could tersely and briefly be set out thus:
The Executing Court failed to grant ample opportunity to the revision petitioner/judgment debtor to put forth his case. Two E.As were filed, one to get the matter reopened and another to adduce additional evidence, but those two E.As. along with E.P. were taken up together by the lower Court and by a common order, those matters were disposed of and delivery was ordered. The revision petitioner preferred appeal as against the decree passed in the suit with an application to get the delay of 225 days condoned in filing such appeal. It so happened that the Sub Court in which the appeal with the delay petition was filed was bifurcated, so to say the said application with the appeal was filed in the Sub Court, Erode, but subsequently on bifurcation, the matter concerned was transferred to the newly constituted Sub Court, Perundurai. They took time to transfer the bundles and in the meanwhile E.P. has been filed for the purpose of getting executed the decree and the E.P. Court also without adhering to Order 21 Rule 26 of CPC simply dismissed the application.
5. Per contra, the learned counsel for the respondent/plaintiff/decree holder would put forth and set forth his arguments, the gist and kernel of them would run thus:
A plain reading of the order of the Executing Court would display and demonstrate that nearly three months and a half was taken by the revision petitioner to argue the E.P. The E.P. itself was filed within two years from the date of the decree. The Executing Court had no right at all to stay in the facts and circumstances of the case the decree, as per Order 21 Rule 26 of CPC and correctly the Executing Court rejected the plea of the revision petitioner/judgment debtor in seeking stay. Accordingly, he prays for the dismissal of the revision.
6. The point for consideration is as to whether there is any perversity or illegality on the part of the Executing court in allegedly invoking Order 21 Rule 26 of CPC?
7. Order 21 Rule 26 of CPC is extracted hereunder for ready reference:
"26. When Court may stay execution.- (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment- debtor to apply to the Court by which the decree was passed or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. .. .. .. "
A mere poring over and perusal of that provision cited supra would amply make the point clear that the transferee Court in certain circumstances has got the right to stay the execution. But here the Executing Court and the Court which passed the decree in the suit are one and the same. In such a case, Order 41 Rule 5 of CPC would be the proper provision of law. It is quite obvious and axiomatic that Order 41 Rule 5 of CPC could not be pressed into service for the simple reason that admittedly the appeal time was over long ago.
8. The revision petitioner/judgment debtor had presented the appeal with the delay of 225 days and it is now pending before the appellate forum and in such a case, the Executing Court appropriately and appositely rejected the plea of the revision petitioner/judgment debtor to postpone the execution of the decree. At this juncture, the learned counsel for the revision petitioner would cite the decision of this Court reported in 1993-1 L.W-331 [S.V.M.Nagavairavasundaram v. S.Bageerathan and others]. He would place reliance on para No.22 and it is extracted hereunder for ready reference:
"22. A decree holder shall be too eager to reap the fruits of the decree and he shall leave no stone unturned too achieve his object of getting the decree satisfied. Any judgment or decree even if appealable further is final subject to appeal or revision and since there is always a chance of the appellate or revisional Court taking a different view than the view taken by the Court passing the decree, it would be reasonable to postpone the execution for a reasonable time to enable the judgment debtor to apply to the appellate Court/revisional Court for a stay of the execution proceedings. Rules 5(2) of Order 41 and Rule 26 of Order 21 aforequoted in the Code of Civil Procedure are such provisions which provide forums to the judgment debtor for seeking a stay of the executio0n of the decree for a reasonable time to enable him to apply to the appellate Court/revisional Court for a stay of the execution of the decree. He, of course, has to show sufficient cause and once such cause is shown, the court to which teh decree is sent for execution or the Court that passed the decree shall be obliged to stay for a reasonable time the execution proceedings. Order 41, Rule 5, is in two parts. The first part gives power to the appellate Court to stay the execution of the decree. The second part gives power to the Court which passed the decree to stay the execution, in case it is satisfied that substantial loss my result to the party applying for stay of execution unless the order is made and the application has been made without any reasonable delay and security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. The scheme of the law thus is that it is open to a judgment debtor to apply to the Court which passed the decree for a stay within a reasonable time to enable him to appeal or move in revision against the decree or order which is appealable/revisable. If the decree is transferred or sent to another Court for execution, the decree holder can apply in the transferee Court as well and the transferee Court for the reasons as indicated in Rule 26 of Order 21 may stay the execution. In any case, the Court passing the decree or the Court to which the decree is transferred for execution may stay for a limited period of time to enable the judgment debtor to appeal against the decree or order or move in revision and to enable him to obtain orders of stay under Order 41, Rule 5 CPC or otherwise in exercise of the inherent powers of the appellate or revisional Court. If these provisions are ignored and in spite of applications in this behalf the Court passing the decree or the Court to which the decree is transferred for execution gives no care to the circumstances under which the decree or order is sought to be impugned before the superior Court and either makes no order at all as in the instant case or makes orders without due care to proceed with the execution of the decree, an impression is created that the Court has almost acted at the behest of the decree holder. The view I express in this behalf is fully borne out by te facts of this case. It is for this reason that I think it is necessary to state that it will be always reasonable for the Court passing the decree to stay the execution thereof for a reasonable time and/or the court to which the decree is transferred for execution. A reasonable time to enable the party to move against the decree in appeal or revision will enhance the interest of justice and cause no serious injury to the decree holder. If, however, no such time is granted and the decree is hurriedly executed as has been done in the instant, a serious question shall always arise whether to restore the status quo ante as it obtained before the execution of the decree and that will invovle the consequence that a restitution proceeding creates, namely, to find out what was the status quo ante obtaining before the decree was passed and how far it is practicable to restore status quo ante. These observations I make in the hope that the Courts below shall avoid such embarrassment. the instant case is a glaring example how for the reason of the hurry shown by the Court below, the judgment debtor/petitioner has been thrown out of a property and in spite of order of stay granted by this Court he is out of possession of the property. In the revision petitioner he has succeeded in showing that the impugned decree has not been passed in accordance with law. Yet it seems he is put out of possession unless restitution is ordered......."
A mere reading of sub section (3) of Section 115 of CPC as entered into the statute book of the Act with effect from 01.07.2002 is extracted hereunder for ready reference:
"(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court."
It would clearly highlight and spotlight the fact that a revision would not operate as a stay of suit or other proceeding before the High court except where such suit or other proceeding is stayed by the High Court. As such, after the said judgment of the year 1993, the current law is found inserted in the statute book which would aptly answer the plea raised by the learned counsel for the revision petitioner and as such, mere pendency of the revision would not in any way deter the lower Court to pass any orders. Here the application under Section 5 of the Limitation Act is pending before the appellate Court for getting the appeal admitted and in such a case, the decision cited by the learned counsel for the petitioner in my opinion is not relevant.
9. At this juncture, I recollect and call up the maxim, Executio juris non habet injuriam : Execution of a judgment will not work a wrong.
10. The learned counsel for the petitioner would submit that if the decree is executed, then there will be no purpose in prosecuting the matter before the appellate forum and everything will end in a fiasco.
11. I hark back to the maxim:
Ubi jus ibi remedium: Where there is a right there is a remedy, and that is applicable to both sides. The decree holder as of right would insist upon the execution of the decree, whereupon, if at all there is any jurisdiction as per law for judgment debtor to invoke Order 41 Rule 5 of CPC or Order 21 Rule 29 of CPC he could do so. My discussion supra would reveal that the judgment debtor brought forth on himself such disadvantageous position whereby he incapacitated himself to invoke O.41 Rule 5 of C.P.C.and it is quite obvious and axiomatic that Order 21 Rule 26 of C.P.C.is totally inapplicable in the facts and circumstances of this case as highlighted supra.
12. In such view of the matter, I am of the considered opinion that there is no merit in this revision petition. Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
13. The learned counsel for the revision petitioner would make an extempore submission that I.A.No.457 of 2009 which is pending before the appellate Court, Perundurai may be directed to be disposed of within a time frame. I could see considerable force in the submission made by the learned counsel for the revision petitioner. Accordingly, the Sub Court, Perundurai is directed to dispose of I.A.No.457 of 2009 by 10th August 2010.
gms To The District Munsif-cum-Judicial Magistrate, Perundurai