Madras High Court
S.Murugan vs S.Ganesan on 14 August, 2023
C.R.P.(MD) No.1861 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.08.2023
CORAM
THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) No.1861 of 2023
and
C.M.P.(MD) No.9311 of 2023
S.Murugan ... Petitioner
Vs.
1.S.Ganesan
2.Muthukrishnan
Perumal Konar (Died)
Muthumalai (Died)
3.Sankarammal
4.Enamuthammal
5.Jeyanthi ... Respondents
Prayer:- This Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, 1908, to set aside fair and decreetal orders dated 12.06.2023
passed in I.A.No.2 of 2023 in C.M.A.No.15 of 2023, on the file of the
Principal District Court, Tirunelveli.
For Petitioner : Mr.V.Meenakshisundaram
for Mr.D.Nallathambi
_____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 6
C.R.P.(MD) No.1861 of 2023
ORDER
This Civil Revision Petition has been preferred as against the impugned order dated 12.06.2023 passed by the learned Principal District Judge, Tirunelveli, in I.A.No.2 of 2023 in C.M.A.No.15 of 2023.
2. The petitioner as the appellant in C.M.A.No.15 of 2023 filed an application in I.A.No.2 of 2023 to stay all further proceeding in E.P.No.92 of 2019 in O.S.No.144 of 2006 on the file of the Principal Sub Court, Tirunelveli till the disposal of the C.M.A.No.15 of 2013.
3. In the said petition, the petitioner herein has stated that the respondents have filed the suit for partition in a joint collusive natures with intention to evict the petitioner from the suit property without impleading the petitioner as a party in the Execution Proceedings and therefore, the petitioner was constrained to file Obstruction Petition in E.A.No.4 of 2021 in E.P.No.92 of 2019 in O.S.No.144 of 2006 on 10.02.2021 and the said E.A. was dismissed by the learned Principal Sub Judge, Tirunelveli vide order dated 10.03.2023, against which, the petitioner filed C.M.A.No.15 of 2023 before the Principal District Court, Tirunelveli.
_____________ https://www.mhc.tn.gov.in/judis Page No. 2 of 6 C.R.P.(MD) No.1861 of 2023
4. It was submitted that the Trial Court though given a finding that the petitioner herein is in possession of the suit property has wrongly held that the petitioner has to surrender the possession, without impleading the petitioner as a party in the Execution Proceedings. The further submission of the petitioner was that the property is an ancestral property, in which, the petitioner is residing along with his family by putting up constructions and obtaining the electricity connections in the name of the petitioner. The Trial Court has ordered break open for executing the delivery warrant by the Amin with the aid of the police which was returned for help of the Surveyor. The petitioner filed the above I.A.No.2 of 2023 in C.M.A.No.15 of 2023 to stay all further proceedings in E.P.No.92 of 2019 in O.S.No.144 of 2006 till the disposal of C.M.A.
5. The above I.A. was resisted by the first and second respondents herein by stating that the above attempt of the petitioner is only to drag on the execution proceedings and the Trial Court after perusing the records and considering the contentions made by the respective parties dismissed the E.A.No.4 of 2021 on 10.03.2023 with compensatory cost of Rs.50,000/- to be paid by the petitioner to the respondents, against which, the petitioner filed C.M.A.No.15 of 2023 and I.A.No.2 of 2023. In I.A.No.2 of 2023, the first and _____________ https://www.mhc.tn.gov.in/judis Page No. 3 of 6 C.R.P.(MD) No.1861 of 2023 second respondents further contended that the petitioner preferred the C.M.A.No.15 of 2023 without paying the compensatory cost of Rs.50,000/- imposed by the Trial Court in E.A.No.4 of 2021. The further contention of the first and second respondents is that the suit was filed in the year 2006 and since the petitioner is not a party to the execution proceedings, as third party he cannot seek any order of stay of execution proceedings.
6. Thereafter, the learned Principal District Judge, Tirunelveli has dismissed the said I.A.No.2 of 2023 in C.M.A.No.15 of 2023 by stating that without depositing the compensatory cost of Rs.50,000/- imposed by the Trial Court, the petitioner cannot seek any order of stay of Execution Proceedings, against which the present Civil Revision Petition has been preferred.
7. The petitioner in his affidavit undertakes to deposit the compensatory cost of Rs.50,000/- to the credit of the C.M.A.No.15 of 2023 within a period of 1 week.
8. Considering the facts and circumstances of the case, for giving an opportunity to the petitioner to put forth his contention in the appeal and in the interest of justice, the impugned order dated 12.06.2023 passed by the learned _____________ https://www.mhc.tn.gov.in/judis Page No. 4 of 6 C.R.P.(MD) No.1861 of 2023 Principal District Judge, Tirunelveli is set aside subject to the petitioner depositing the compensatory cost of Rs.50,000/- imposed by the Trial Court in E.A.No.4 of 2021 in E.P.No.92 of 2019 in O.S.No.144 of 2006, within a period of 1 week from the date of receipt of a copy of this order.
9. On such deposit, the learned Principal District Judge, Tirunelveli is directed to restore the application in I.A.No.2 of 2023 filed by the petitioner to stay the execution proceedings in E.P.No.92 of 2019 in O.S.No.144 of 2006 and dispose the same on merits expeditiously, within a period of 3 weeks from the date of receipt of a copy of this order.
10. Accordingly, this Civil Revision Petition is allowed with the above directions. No cost. Consequently, connected Miscellaneous Petition is closed.
14.08.2023 Index : Yes/No Internet : Yes/No NCC : Yes/No jen To : The Principal District Judge, Tirunelveli.
_____________ https://www.mhc.tn.gov.in/judis Page No. 5 of 6 C.R.P.(MD) No.1861 of 2023 K.GOVINDARAJAN THILAKAVADI, J.
jen C.R.P.(MD) No.1861 of 2023 and C.M.P.(MD) No.9311 of 2023 14.08.2023 _____________ https://www.mhc.tn.gov.in/judis Page No. 6 of 6