Sanjai Ammal vs Dhanalakshmi Ammal on 27 June, 2007

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27-6-2007
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.R.P.NPD Nos.678 and 695 of 2007
and
MP Nos.1 and 1 of 2007
Sanjai Ammal						.. Petitioner in
								   both revisions

vs

Dhanalakshmi Ammal					.. Respondent in
								   both revisions
	Civil revision petitions filed under Article 227 of the Constitution of India against the orders dated 3.2.2007 made in R.E.P.No.165 of 2005 in O.S.No.104 of 1995 and REA No.625 of 2006 in REP No.165 of 2005 in O.S.No.104 of 1995 on the file of the Additional Subordinate Judge, Salem.
		For Petitioner		:  M/s.V.N.S. Law Firms
		For Respondent		:  Mrs.R.Meenal
COMMON ORDER
	This order shall govern these two revisions in CRP Nos.678 and 695 of 2007.
	2.The Court heard the learned Counsel on either side.
	3.Admittedly, an ex-parte decree came to be passed in O.S.No.104 of 1995, a suit for specific performance, on the file of the Additional Sub Court, Salem, against the petitioner herein as the second defendant and her husband as the first defendant, on 17.6.1998.  I.A.No.153/98 was filed to set aside the ex-parte decree; but, the same was dismissed.  The order became final since it was not set aside or challenged.  Pursuant to the decree, the respondent herein namely the decree holder, filed E.P.No.152 of 1998 for execution of the sale deed.  Pending the proceedings, the first judgment debtor died on 1.10.2004.  The sale deed was actually executed through the Court in favour of the decree holder.  Following the same, the present judgment debtor who is the revision petitioner herein, filed a suit in O.S.No.307 of 2006 to set aside the decree passed in O.S.No.104 of 1995, and the said suit is yet pending.  While the matter stood thus, the revision petitioner filed an execution application to stay the execution proceedings.  The same was dismissed.  There arose C.R.P.No.695 of 2007.  After the dismissal of the said E.A., the delivery was ordered in the E.P.  Challenging the same, CRP No.678 of 2007 is brought forth.  Thus, these two revisions have arisen before this Court.
	4.The only contention put forth by the learned Counsel for the petitioner-judgment debtor is that while the suit  filed by the petitioner herein in O.S.No.307/2006 seeking to set aside the decree passed in O.S.No.104/95, was pending, the lower Court should have allowed the application for stay, but not done so; that further, in the instant case, the delivery should not have also been ordered; that the lower Court before passing the order of delivery, should have considered the objections raised in the course of the counter affidavit filed there, but not done so, and thus, the orders are infirm and illegal and have got to be set aside.

	5.The Court heard the learned Counsel for the respondent on the above contentions.
	6.After careful consideration of the rival submissions made, this Court is of the considered opinion that the orders of the lower Court have got to be sustained.  It is not in controversy that pursuant to a decree passed in O.S.No.104/95, the execution petition was taken in E.P.No.165 of 2005.  It is also an admitted position that following the same, the execution of the sale was also made by the Court, and thus, delivery was pending.  At that juncture, the suit in O.S.No.307/2006 was filed by the petitioner challenging the original judgment made in O.S.No.104/95.  Mere filing and pendency of a suit seeking a declaration that the decree is not executable, cannot by itself operate as a stay.  Further, the petitioner has filed an execution application seeking stay of the execution proceedings.  The lower Court pointing to the entire circumstances, has given an elaborate order which is a reasoned one and thereby, dismissed the application.  This Court is unable to notice any infirmity or illegality to interfere in that order.  That apart, the only procedure what was to be done was to order delivery.  Accordingly, it has been done.  This Court does not find any infirmity in the said order.  Hence, both the revisions require an order of dismissal, and accordingly, they are dismissed.  No costs.  Consequently, connected MPs are also dismissed.

Index: yes							27-6-2007
Internet: yes
							M.CHOCKALINGAM, J.

Nsv/

To:

The Additional Subordinate Judge
Salem

nsv/

CRP NPD Nos.678 and
695 of 2007

Dt: 27-6-2007