IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.07.2009 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.R.P.(N.P.D) No.2004 of 2008 And M.P.No. 1 of 2008 Mr. M. Janakiraman .... Petitioner Vs. 1. Mrs. Jagadeeswari 2. Mrs. Narayani .... Respondents PRAYER: This Civil Revision Petition is filed under Section 115 of C.P.C., against the order and decreetal order passed in E.P. No.121 of 2005 in O.S No.80 of 2004 dated 31.03.2008 on the file of learned Subordinate Judge at Arani, Thiruvannamalai District. For Petitioner : M/s. D. Aravindan For Respondents : Mr. V. Anil Kumar O R D E R
The petitioner/first respondent/judgment debtor No.1 has filed this civil revision petition as against the order dated 31.03.2008 in E.P. No. 121 of 2005 in O.S. No. 80 of 2004 passed by the learned Subordinate Judge at Arani, Thiruvannamalai District.
2. The Executing Court in E.P. No.121 of 2005 on 31.03.2008 after the SOT filed has ordered issuance of notice to the respondents and also ordered proclaim and sell on 02.06.2008 and has given a further date of hearing on 06.06.2008 and on 06.06.2008 the judgment debtor has been paid and the Executing Court has ordered proclaim and sell on 30.06.2008 and posted the matter on further hearing on 04.07.2008.
3. It is to be noted that in the main suit in O.S. No.80 of 2004 on the file of the trial court, an exparte decree dated 23.03.2005 has been passed against the revision petitioner and the second respondent, namely the wife of the revision petitioner. It transpires that earlier the revision petitioner has filed E.A.No. 27 of 2006 praying the Executing Court to stay of further proceedings of the decree in O.S. No.80 of 2004 till the judgment debtor obtains a copy of fair and in decreetal order preferring an appeal and the same after contest has since been dismissed on 06.11.2007. As against the said order passed in E.A. No. 27 of 2006 the revision petitioner and his wife have not initiated further proceedings before the higher forum.
4. The learned counsel for the revision petitioner urges before this court that the executing court has committed an error in bringing the entire property for sale in regard to the realisation of sum of Rs.2,69,550/- and further the upset price furnished by the first respondent/decree holder is very low inasmuch as the value of the property is Rs.20,00,000/- and as a matter of fact, the trial court should have exercised its discretion and the fact that the property comprises of two parts, one with built up portion and another portion of vacant land is worth about more than Rs. 5 lakhs has not been appreciated by the trial court in a proper perspective and moreover the executing court has not observed its statutory duty to take into account of the sale of only part of the property and therefore, the order setting of terms of sale is per se, illegal and invalid and therefore, prays for allowing the civil revision petition in the interest of justice.
5. In response, the learned counsel for the first respondent/decree holder contends that the revision petitioner and his wife/judgment debtors have obtained a loan of Rs.1,50,000/- on the basis of a promissory note as early as on 16.06.2002 and that an exparte decree has been passed by the trial court on 23.03.2005 and the E.A. No. 27 of 2006 filed by the judgement debtors have been dismissed by the trial Court and on 31.03.2008 when the SOT has been filed and notice has been ordered in regard to proclamation and sale of the schedule property on 02.06.2008 etc., the revision petitioner has projected the civil revision petition to steal the endeavor of the first respondent/decree holder in not enjoying the fruits of the decree and further, the trial court has taken in to account of the over all assessment of facts and circumstances of the case in an integral fashion and therefore, the order passed by the executing court in ordering for SOT etc. on 31.03.2008 need not be disturbed by this court.
6. In support of the contention that the executing court has to consider the issue as to whether sale of only part of the portion will be sufficient to satisfy the decree, the learned counsel for the revision petitioner cites the decision of Hon’ble Supreme Court in S. Mariyappa (Dead) by Lrs. & Others Vs. Siddappa and Another reported in 2004 (3) CTC 671 whereby and whereunder it is inter-alia observed that:
“Executing court has not observed its statutory duty and the sale of entire property in execution of decree by Executing Court set aside giving liberty to execute decree in accordance with law .” According to the learned counsel for the revision petitioner the aforesaid decision of the Supreme Court squarely complies to the facts of the present case.
7. On a careful consideration of respective contentions, this court is of the considered view that it is for the revision petitioner and his wife to prove before the executing court that the schedule property consists of two parts, one with built up portion and another portion of vacant land which is worth about more than Rs. 5 lakhs etc., and this can be done by the revision petitioner by establishing the same with necessary oral and documentary evidence at the relevant point of time in an enquiry in the execution proceedings before its culmination and as such, the revision petition filed by the revision petitioner is a otiose and premature one and resultantly, the civil revision petition fails and the same is dismissed.
8. In fine, the civil revision petition is dismissed, leaving the parties to bear their own costs. Liberty is given to the revision petitioner and his wife/judgment debtors to establish their version that the subject property consists of two parts, one with built up portion and another portion of vacant land etc. before executing court and the petitioner is also entitled to adduce oral and documentary evidence in this regard if need arises thereto and it is also made clear that since the suit is of the year 2004 and taking note of another fact that the decree has been passed as early as on 23.03.2005 and also in lieu of the fact that E.P. No.121 of 2005 is pending on the file of trial court for a long time, this court, on the basis of Equity, Fairplay, Good Conscience and even as a matter of prudence, directs the trial Court to dispose of the main E.P. No. 121 of 2005 within a period of 3 months and to report compliance to this Court without fail.
28.07.2009
Index: Yes/No
Internet:Yes/No
prm
To
The Learned Subordinate Judge at Arani, Thiruvannamalai District.
M.VENUGOPAL, J.
prm
C.R.P N.P.D) No.2004 of 2008
And M.P.No. 1 of 2008
28.07.2009