BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/08/2011 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.R.P(NPD)(MD)No.456 of 2011 and M.P(MD)No.1 of 2011 Sarala Ammal ..Petitioner Vs Elayanthangudi Okkur Nagarathar Sangam, Through its Executive Trustees, 1.K.T.Mohan 2.K.D.R.Chockalingam Chettiar Elayathangudi, Sivagangai District. ..Respondents PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India to direct the learned I Additional District Munsif, Madurai Town to dispose of the I.A.No.188 of 2009 in O.S.No.928 of 2005 expeditiously as early as possible. !For Petitioner ... Mr.L.Muthusuthanan ^For Respondents ... Mr.V.R.Shanmuganathan :ORDER
This petition has been filed by the petitioner to direct the learned I
Additional District Munsif, Madurai Town to dispose of the I.A.No.188 of 2009 in
O.S.No.928 of 2005 expeditiously as early as possible.
2.The Brief facts of the case are as follows:-
The respondent/plaintiff has filed a suit in O.S.No.928 of 2005 against
the revision petitioner/defendant to direct the defendant to make delivery of
possession of the suit property and has sought further direction to pay a sum of
Rs.60,000/- for damage for use and occupation of the property together with
interest at the rate of 12% per annum till date of payment and other relief.
The said suit was filed on 18.12.2001. The defendant also entered appearance
through his counsel. The said case was adjourned from time to time. On
21.11.2005, when the said suit came for hearing, the plaintiff’s counsel and the
defendant’s counsel appeared but the defendant was called absent. Therefore,
the learned Judge passed an ex-parte decree in favour of the plaintiff.
Pursuant to the decree and judgment, the plaintiff has filed E.P. proceedings in
E.P.No.547 of 2008 in O.S.No.928 of 2005. In the said E.P. proceedings,
delivery was ordered, after due notice.
3.The Revision petitioner/defendant has filed interlocutory application in
I.A.No.188 of 2009 on 04.03.2009. The same was resisted by the
respondent/plaintiff and the said I.A. is still pending on the file of the I
Additional District Munsif Court, Madurai.
4.Under the circumstances, the revision petitioner has filed the above
civil revision petition to direct the learned I Additional District Munsif,
Madurai to dispose the interlocutory application in I.A.NO.188 of 2009 in
O.S.N.928 of 2009 as expeditiously as possible.
5.The learned counsel for the revision petitioner argued that the revision
petitioner is a lawful tenant for several years. The plaintiff has filed the
suit against the revision petitioner for delivery of possession. The said suit
was decreed ex-parte. The learned counsel further argued that an ex-parte
decree can be set aside at any time, since several issues have arisen in this
suit. All the issues have to be decided only after proper trial. If the ex-
parte decree is executed, against the revision petitioner, he will be put into
hardship. At the same time, if the ex-parte decree is set aside and if the case
is disposed on merits, the interests of the plaintiff will not be prejudiced.
6.In support of his contention, the learned counsel for the petitioner
cited a judgment in the case of Nazruddin vs. The Idol of Arulmigu Navaneedha
Krishnasami and Durgai Amman Vahaira Tamples reported in 1999(1) MLJ 747. The
relevant portion of this Judgment reads as follow:-
“Civil Procedure Code, (V of 1908), O.21, Rule 26 – Scope – Ex parte
decree passed – Execution petition filed – Judgment-debtor filing petition to
stay execution petition pending orders on his application for setting aside ex
parte decree and for condonation of delay – Executing court to the transferor
court, held, had power to stay execution.
O.21, Rule 26 of the Civil Procedure Code will empower the execution court
or the transferor court to grant stay of execution of ex parte decree for a
reasonable time so as to enable the judgment debtor to get further orders from
the trial court either on the application under Section 5 of the Limitation Act
or under O.9, Rule 13, Civil Procedure Code.”
7.In another Judgment in the case of A.Gopalakrishnan vs. Cochin Devaswam
Board reported in AIR 2007 SC 3162. The relevant portion of this Judgment
reads as follows:-
“(A) Civil P.C.(5 of 1908), O.23, R.3A – constitution of India, Art.226 –
Compromise decree – Protection from further challenge – Does not bar High Court,
examining allegations of fraud against statutory authority.
O.P.No.19728 of 2001 (S), D/- 18-10-2005 (Ker), Reserved.
Order 23, Rule 34 provides that no suit shall lie to set aside a decree on
the ground that the compromise on which the decree is based was not lawful. The
bar contained in Rule 3A will not come in the way of the High Court examining
the validity of a compromise decree, when allegations of fraud/collusion are
made against a statutory authority which entered into such compromise. It is
true that decrees of Civil Courts which have attained finality should not be
interfered lightly. But when on an order being passed by High Court directing
Temple Board to take possession of Temple property from respondent, the Board
entered into compromise with respondent to give up their rights in property in
question in lieu of respondents giving possession of another property which was
also a Temple property and got a compromise decree passed, challenge to such
compromise decree by an aggrieved devotee, who was not a party to the suit,
cannot be rejected, where fraud/collusion on the part of officers of a Statutory
Board is made out. Further, when the High Court by order had directed the Board
to take possession of suit land immediately from respondents in a complaint by
another devotee, it was improper for the Board to enter into a settlement with
respondents, giving up the right, title and interest in suit property without
the permission of the Court which passed such order.”
8.The learned counsel for the respondent/plaintiff argued that the ex-
parte decree passed on 21.11.2005, but the E.P. proceedings was initiated in the
year 2008. Only after sufficient opportunity was given to the revision
petitioner, the E.P. was ordered for delivery of property. Subsequently, the
learned executing court Judge ordered for break open the lock with the help of
police aid. This order was passed on the basis of proper petition of the
plaintiff. This is the factual position. This C.R.P. has been filed by the
petitioner for speedy disposal of the interlocutory application in I.A.No.188 of
2009. This application along with condone delay petition to condone delay of
more than 1000 days, was made to set aside the ex-parte decree. Therefore, E.P.
proceedings cannot be stayed. As such, the stay petition for stay of the E.P.
proceedings is not maintainable.
9.In support of his contention, he cited a judgment in the case of
T.Govindarajan vs. T.soundarajan reported in (2007)2 MLJ 901. The relevant
portion of this Judgment reads as follow:-
“(A) Civil Procedure Code (5 of 1908), Order 21 Rule 64 – Execution
Proceedings – Property attached and liable to be sold – Only such portion of the
property necessary to satisfy the decree could be sold- Executing Court has a
duty cast upon it to hear the judgment-debtor, so also the decree-holder and
order sale of only such property or a portion there of necessary to satisfy the
decree – Non-compliance of Order 21 Rule 64 C.P.C., vitiates impugned order –
Directions issued to the Executing Court to comply with the mandatory
requirement of Order 21 Rule 64 C.P.C.”
10.In another Judgment in the case of G.Suresh Mohan vs. S.Lilly and
another reported in 2010-4-L.W. 512. The relevant portion of this Judgment
reads as follows:-
” C.P.C., Order 41, R.5/Appeal, delay in filing, Condoning of, Order 21,
R.26, Section 115.
Respondent filed the suit and obtained a decree for recovery of possession
against the revision petitioner and filed E.P. for enforcing the decree –
Petitioner/defendant filed an appeal with application to get the delay 225 days
condoned and that application is still pending in the Sub Court, Perundurai –
After hearing both sides, the Executing Court ordered delivery. Being aggrieved
by and dissatisfied with the said order, this revision has been filed.
Held: Transferee Court in certain circumstances has got the right to stay
the execution – But here the Executing Court and the Court which passed the
decree in the suit are one and the same – In such a case, Order 41 Rule 5 of
CPC would be the proper provision of law – Order 41 Rule 5 of CPC could not be
pressed into service for the simple reason that admittedly the appeal time was
over long ago – Revision petitioner/judgment debtor had presented the appeal
with the delay of 225 days and it is not pending before the appellate forum and
in such a case, the Executing Court appropriately rejected the plea of the
revision petitioner/Judgment debtor to postpone the execution of the decree.
Judgment debtor brought forth on himself such disadvantageous position
whereby he incapacitated himself to invoke O.41 Rule 5 of C.P.C. – Order 21 Rule
26 of C.P.C. is inapplicable in the facts and circumstances of this case – CRP
dismissed.”
11.In another Judgment in the case of Popat and Kotecha Property vs. State
Bank of India Staff Association reported in 2005(4) CTC 489. The relevant
portion of this Judgment reads as follows:-
“Code of Civil Procedure, 1908, Order 7, Rule 11 – Object of Order 7, Rule
11, is to keep out of courts irresponsible suits – Averments made in plaint
alone would be looked into while considering application for rejection of plaint
under Order 7, Rule 11 – Pleas raised in Written statement are irrelevant at
such stage – Power vested under Order 7, Rule 11 would be invoked if on
meaningful reading of plaint no clear right to sue is found and where plaint is
vexatious and meritless – Whole plaint must be read and there cannot be
compartmentalisation, dissection, segregation and inversions of language of
various paragraphs in plaint – Averments in plaint is to be construed as its
stands without addition or subtraction of words or change its apparent
grammatical sense – Remedy given to defendant to challenge maintainability of
suit can be restored to at any stage – Order 7, Rule 11, casts duty on Court to
perform its obligations in rejecting plaint when such plaint is hit by
infirmities provided in 4 clauses of Rule 11 and such power is to be exercised
even without intervention of defendant – Plaintiff can file fresh suit in terms
of Rule 13 and rejection of plaint under Order 7, Rule 11 does not preclude
plaintiff from filing fresh suit – Case law discussed.”
12.In another Judgment in the case of Rathinathammal vs. Muthusamy
reported in (2004)3 M.L.J. 36. The relevant portion of this Judgment reads as
follows:-
” Limitation Act (XXXVI of 1963), Sec. 5 – Ex parte decree – One of the
defendants seeking to set aside the ex-parte decree with a delay of 545 days –
Application rejected – Order challenged in revision – Though the petitioner was
impleaded at a later stage, she was aware of the suit – Suit was allowed to be
decreed ex parte – Only at the time of delivery of property, the petitioner has
chosen to file application for condonation of delay – Petitioner was aware of
execution proceedings – Delay cannot be condoned.”
13.In another Judgment in the case of Gulf Air Company vs. V.M.Rajalingam
reported in (2005)5 C.T.C. 662. The relevant portion of this Judgment reads as
follows:-
“Code of Civil Procedure, 1908, Order 9, Rule 13 – Application to set
aside ex parte decree – Absence of sufficient cause – Application is liable to
be dismissed – Delay of 3415 days in filing application to set aside ex parte
decree – Suit filed on 26.12.1991 – Summons served on applicant company on
21.01.1995 – Ex parte decree passed by High Court on 31.8.1995 – Application to
set aside decree filed on 4.2.2005 – Application dismissed – Original Side
Appeal filed by defendant – Contention that applicant may be given opportunity
to contest suit on merits – It was held that questions about sufficient cause
and bona fides would depend upon facts of each case – On facts held no
sufficient cause was shown for delay and no bona fide reason brought out to
explain delay of 10 years – Silence of company till summons were served on
21.1.1995 not explained in affidavit – Belated explanation about service of
summons to old address held unacceptable – Delay by plaintiff to file Execution
Petition will not help defendant – Reasons given not bona fide – Sufficient
cause not made out – O.S.A. Dismissed.”
14.Per contra, the learned counsel for the revision petitioner argued that
the suit property is a temple property. After delivery of the property, it will
be let out to third parties. The revision petitioner is prepared to pay entire
arrears of rent.
15.The learned counsel for the respondent relied in his arguments that
this offer of the petitioner has been made at a belated stage, since the E.P.
was ordered for delivery of property and to break open the lock with police aid.
Almost, the entire E.P. proceedings is in the closing stage.
16.In view of the facts and circumstances of the case, and arugments
advanced by the learned counsel on both sides, this court is of the considered
opinion that the revision petitioner prayer is to dispose of the I.A.No.188 of
2009 in O.S.No.928 of 2005 on the file of I Additional District Munsif Court,
Madurai Town, and this Court holds that this prayer is justified. Hence, this
Court directs the learned I Additional District Munsif,
Madurai Town to dispose the above case within a period of three months from the
date of receipt of this order, without being influenced by this Courts
discussion. Accordingly ordered.
17.Resultantly, the above civil revision petition is disposed of with the
above observations. Consequently, connected miscellaneous petition is closed.
There is no order as to costs.
skn
To
The I Additional Subordinate Judge,
Madurai.