Madras High Court
Antoinette Beaumont vs Ritha Vincent on 10 January, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.R.P.(NPD)No.2726 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.2726 of 2021
and C.M.P.No.19947 of 2021
Antoinette Beaumont .. Petitioner
Vs.
1.Ritha Vincent
2.Rakkini @ Muniammal .. Respondents
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, against the fair and decretal order dated 30.09.2010
made in E.P.No.21 of 2007 in O.S.No.514 of 1985 on the file of the
Principal Sub Court, Puducherry.
For Petitioner : Mr.R.Agilesh
For R1 : Mr.K.Sukumaran
For R2 : Mr.S.Sudarshan
for Mr.S.Subramanian
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C.R.P.(NPD)No.2726 of 2021
ORDER
(The matter is heard through “Video-conferencing”) Civil Revision Petition is filed against the fair and decretal order dated 30.09.2010 made in E.P.No.21 of 2007 in O.S.No.514 of 1985 on the file of the Principal Sub Court, Puducherry.
2.The petitioner is the legal representative of judgment debtor in O.S.No.514 of 1985 on the file of the Principal Sub Court, Puducherry and 3rd respondent in E.P.No.21 of 2007. The 1st respondent, who is the decree holder/petitioner in E.P. filed the said suit against one Pauline Bombo, the 1st defendant and 2nd respondent herein for specific performance of agreement of sale. The said suit was decreed only against Pauline Bombo, the 1st defendant to execute the sale deed in favour of 1st respondent on depositing the balance sale consideration of Rs.15,000/- into the Court within four months from the date of decree, execute the sale deed as per Ex.A2 in respect of the suit property, the 2 nd respondent is entitled to receive the sum of Rs.15,000/- deposited into the Court and 2/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 the balance amount of Rs.15,000/- from the 1st defendant with interest and setting aside the sale deed dated 20.01.1986 as null and void. Against the judgment passed in the suit, the First Appeal in A.S.No.133 of 1990 was filed by the defendants and the same was allowed. The 1 st respondent filed Second Appeal No.1450 of 1993 and the same was allowed confirming the decree of the trial Court by the judgment dated 14.06.2006. The 1st respondent filed E.P.No.21 of 2007 against the defendants for a direction to them to execute the sale deed in respect of the suit property and in default, the Court to execute the sale deed in favour of the 1st respondent. Even after entering appearance, the 1st defendant/1st respondent in E.P. was set exparte on 04.04.2008. The 1 st defendant/1st respondent in E.P. filed an application in E.A.No.Nil of 2008 under Section XXI Rule 106 read with Section 151 of C.P.C., to set aside the exparte order dated 04.04.2008 made in E.P.No.21 of 2007 passed against her. The 1st defendant also filed counter statement in the E.P. along with said E.A. According to the 1st defendant/1st respondent in E.P., when E.P. was posted for filing counter statement by the 1 st 3/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 respondent in E.P., she did not file counter statement as one Antionette Beaumont/third party, the petitioner herein filed application under Section 151 of C.P.C. to stay all further proceedings of E.P.No.21 of 2007. The 1st defendant stated that she was aged 82 years, she could not come out from her house due to her old age from January 2008 onwards, exparte order was passed on 04.04.2008 and prayed for setting aside the exparte order.
2(i). Pending E.P., the 1st defendant Pauline Bombo, who is 1st respondent in E.P. died. The petitioner, legal representative of the 1 st defendant was brought on record as 3rd respondent in the E.P.
3.The learned Judge on 30.09.2010 passed the following order:
“Sale deed executed. Sale deed handed over to the petitioner. E.P. is terminated.”
4.Against the said fair and decretal order dated 30.09.2010 made in E.P.No.21 of 2007 in O.S.No.514 of 1985, the petitioner has come out with the present Civil Revision Petition.
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5.The learned counsel appearing for the petitioner contended that the application filed by the 1st defendant/1st respondent in E.P. on 10.04.2008 was not numbered and taken up for hearing. It was kept un- numbered for more than two years. Without considering the said application and without giving an opportunity to the 1st respondent in E.P., the learned Judge executed the sale deed and terminated the E.P. The learned Judge did not comply with the provisions of Order XXI Rule 34 of C.P.C. for execution of the sale deed, erroneously executed sale deed in favour of the 1st respondent herein, terminated E.P. and prayed to set aside the order in E.P. and for allowing the C.R.P.
6.The learned counsel appearing for the 1st respondent contended that in spite of opportunity given to the 1 st defendant, she did not file counter statement setting out her objections in the E.P. The reason given by the 1st defendant that in view of application filed by the petitioner herein to stay of E.P. proceedings, she has not filed counter statement is not acceptable. In view of non-filing counter statement, the learned Judge 5/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 set the 1st respondent in E.P. exparte and after complying the provisions of Order XXI Rule 34 of C.P.C., executed the sale deed and terminated the E.P. There is no error in the said order of the learned Judge and prayed for dismissal of the Civil Revision Petition.
7.Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the 1st respondent and 2nd respondent and perused the entire materials on record.
8.From the materials on record, it is seen that decree holder has filed E.P. for a direction to the defendants to execute the sale deed in respect of schedule mentioned property and in default, the Court can execute the sale deed in her favour. When the judgment debtor fails to execute the sale deed as per the decree, the Court can execute the sale deed after complying with the provisions of Order XXI Rule 34 of C.P.C. Order XXI Rule 34, Sub-Rules (1) to (4) is relevant to decide the issue in the C.R.P. and the same reads as follows:
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https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 Order XXI Rule 34 of C.P.C.
“34.Decree for execution of document, or endorsement of negotiable instrument— (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.” 7/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 As per Sub-Rule (1), the decree holder has to file draft sale deed along with E.P. As per Sub-Rule (2), the Court has to serve the draft sale deed on the judgment debtor along with notice requiring his objections, if any within the time that may be fixed by the Court. As per Sub-Rule (3), If the judgment debtor objects to any averments in the draft sale deed, he has to submit the same in writing. When such objections are made in writing, the Court has to consider the same and pass orders either approving the draft sale deed or as such alter the draft sale deed as the Court thinks fit. Only after complying with the provisions of Sub-Rule (2) and (3) of Rule 34 of Order XXI of C.P.C., the Court can proceed to execute the sale deed.
9.From the materials placed before this Court, it is seen that there is nothing on record to show that draft sale deed was served on the judgment debtor/1st respondent in E.P. or petitioner, who was brought on record as the legal representative of judgment debtor. It is not the case of the 1st respondent also that draft sale deed was served on the 1 st 8/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 respondent/judgment debtor in the E.P. or the petitioner herein. Without complying with the provisions of Sub-Rule (2) and (3) of Rule 34 of Order XXI of C.P.C., the learned Judge erroneously executed the sale deed in favour of the 1st respondent herein. Further, when the 1st defendant/judgment debtor filed E.A. on 10.04.2008 to set aside the exparte order passed against her, the Court did not either number the application for hearing or reject the same un-numbered. Without doing so, the said E.A. was kept pending for more than two years without being numbered. After filing said application, by the impugned order dated 30.09.2010 made in E.P.No.21 of 2007 in O.S.No.514 of 1985, the learned Judge executed the sale deed in favour of the 1 st respondent herein, handed over the sale deed and terminated the E.P. without complying with the provisions of Sub-Rule (2) and (3) of Rule 34 of Order XXI of C.P.C., the learned Judge has committed irregularity and illegality. Therefore, the said order of the learned Judge made in E.P.No.21 of 2007 in O.S.No.514 of 1985 is liable to be set aside and is hereby set aside. The learned Judge is directed to take E.P. on file, 9/11 https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.2726 of 2021 consider the application filed by the judgment debtor/1st respondent in E.P. and pass orders in E.P. after complying with the provisions of Order XXI Rule 34 Sub-Rule (2) and (3) of C.P.C. The learned Judge is directed to dispose of E.P. as expeditiously as possible in any event, within six months from the date of receipt of a copy of this order.
10.With the above directions, the Civil Revision Petition stands allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
10.01.2022
Index : Yes/No [1/2]
Internet: Yes/No
Note:The Registry is directed to send back
the original documents filed by the
petitioner to the trial Court forthwith.
kj
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C.R.P.(NPD)No.2726 of 2021
V.M.VELUMANI,J.
Kj
To
The Principal Subordinate Judge
Puducherry.
C.R.P.(NPD)No.2726 of 2021
and C.M.P.No.19947 of 2021
10.01.2022
[1/2]
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