Madras High Court
M.Sakthi vs P.M.Subramani
Author: J.Nisha Banu
Bench: J. Nisha Banu
C.R.P.No.897 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.06.2022
RONOUNCED ON : 29.08.2022
C O RAM :
The Hon'ble Mrs. Justice J. NISHA BANU
Civil Revision Petition No.897 of 2019
M.Sakthi
..Petitioner/Decree holder
Vs
P.M.Subramani ..Respondent/Judgment Debtor
Prayer :Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated
04.09.2018 passed in R.E.P.No.55 of 2016 in O.S.No.159 of 2015 by the
learned Subordinate Judge, Dharmapuri.
For Petitioner : Mr.Arun Anbumani
For respondent : Notice served.
1/7
https://www.mhc.tn.gov.in/judis
C.R.P.No.897 of 2019
ORDER
This Civil Revision Petition is filed as against the order passed in R.E.P.No.55 of 2016 wherein, the learned Judge dismissed the REP filed by the Decree holder holding that it is not possible to attach the property when no document was produced to establish that the same belonged to the respondent/Judgment debtor.
2. O.S.No.159 of 2015 has been filed by the Revision Petitioner herein as Plaintiff. The suit has been filed for recovery of money. Exparte decree has been passed in favour of the Plaintiff directing the defendant to pay Rs.3,08,000/- [I.e. loan of Rs.2,00,000/- with interest]. The decree was passed by the Subodinate Court, Thirupathur, Vellore District by judgment dated 29.4.2016. Thereafter, Execution Petition was filed by the Decree holder under Order 21 Rule 64 and 66 CPC. The said EP has been transferred to Subordinate court, Dharmapuri.
3. The averments in REP is that the property of the defendant 2/7 https://www.mhc.tn.gov.in/judis C.R.P.No.897 of 2019 mentioned in the schedule has to be brought to auction for sale and from the sale proceeds, the Decree holder has to be paid the decreetal amount of Rs.3,52,356/- which amount including the interest as ordered in the suit.
4. Before the Executing Court, the defendant has not entered appearance and has not filed any counter in response to the averments made in R.E.P. In such circumstances, the matter was posted for exparte order on 19.07.2018. On 19.07.2018, for want of documents and evidence, it was adjourned to 03.08.2018, 18.08.2018 and on 21.08.2018, it was argued on behalf of the Petitioner/Decree holder that the schedule mentioned property belongs to the defendant and as such there is no necessity to produce any evidence to prove the same. However, the learned Judge held that in an Execution Petition, attachment of property of the defendant can be done only if the petitioner proves that the said property belongs to the defendant with sufficient documents. Holding so, the learned Subordinate Judge dismissed the 3/7 https://www.mhc.tn.gov.in/judis C.R.P.No.897 of 2019 R.E.P.
5. A perusal of the records would go to show that even in the suit proceedings, the defendant remained exparte. Thereafter, in the Executing Proceedings also, he did not appear before the court. According to the plaintiff, the property of the defendant mentioned in the schedule belongs to the defendant and it has to be brought to auction for sale and from the sale proceeds, the Decree holder has to be paid the decreetal amount, otherwise, the fruits of decree cannot be enjoyed by the plaintiff. In such circumstances, it is for the defendant to come forward to the court and state whether the property is liable for attachment or not.
6. But, the learned Judge, in respect of attachment of the property, held that the petitioner/Decree holder has not proved that the property sought for attachment is the property of the judgment debtor and dismissed the application, without looking into the claim of the plaintiff vis-a-vis the provisions of CPC in respect of attachment of property. 4/7 https://www.mhc.tn.gov.in/judis C.R.P.No.897 of 2019 Since the decree is in favour of the plaintiff and the defendant remained exparte in the suit proceedings and also not chosen to appear before the Executing Court, the dismissal of EP is not sustainable. It is open to the defendant either to dispute the claim of the plaintiff in respect of attachment or raise objections disputing that the property does not belong to him.
7. It is settled proposition of law that the terms of Order 21 Rule 68 CPC are wide enough. It is useful to refer to the decision reported in AIR 1955 Allahabad 241, wherein, the appellant had initially preferred objection under Order 21 Rule 58 to the attachment of the property on the ground that her husband had sold the property to her in lieu of her dower debt and that she was the owner in possession of the property and that her husband had no interest in the property, which could be attached or sold in execution of the money decree, This objection was rejected and after the rejection, the property was sold in two lots and the decree-holder purchased the property and obtained 5/7 https://www.mhc.tn.gov.in/judis C.R.P.No.897 of 2019 formal possession.
8. In view of the principles of law and the facts of the case, this court is of the view that the order dated 04.09.2018 passed in R.E.P.No.55 of 2016 in O.S.No.159 of 2015 deserves to be remanded back to the trial court for de novo consideration by the court below for passing appropriate orders.
9. Accordingly, this Civil Revision Petition is allowed. The matter is remanded back to the learned Sub-Judge, Dharmapuri, for passing orders afresh in R.E.P.No.55 of 2016 in O.S.No.159 of 2015. No costs.
Index :Yes/No 29.08.2022
nvsri
To
1. The learned Subordinate Judge, Dharmapuri.
2.The Section Officer, VR Section, High Court, Madras. 6/7 https://www.mhc.tn.gov.in/judis C.R.P.No.897 of 2019 J.NISHA BANU, J.
nvsri Pre-delivery Order in C.R.P.No.897 of 2019 29.08.2022 7/7 https://www.mhc.tn.gov.in/judis