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Thangasamy vs Madasami on 29 March, 2004

Madras High Court
Thangasamy vs Madasami on 29 March, 2004
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS           

DATED: 29/03/2004  

CORAM   

THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM                

C.R.P. (NPD). No.342 of 2004 
and 
C.M.P.Nos.2856 and 2857 of 2004  

Thangasamy                                             .. Petitioner

-Vs-

1. Madasami  
2. Anthonysamy @ Hariharan                                 .. Respondents


        Civil Revision Petition filed under Section 115 of the Civil Procedure
Code against the order dated 1.8.2003 in E.A.No.78 of  2002  in  E.P.No.76  of
2000  in  O.S.No.566  of  1990  on  the  file  of  the  District Munsif Court,
Srivaikundam. 

!For petitioner :  Mr.O.Venkatachalam

^For Respondents:  ---

:ORDER  

Madasami, the first respondent herein obtained money decree against
Thangasamy, the petitioner herein in O.S.No.566 of 1990. In execution
proceedings in E.P.No.76 of 2000, he attached the property in question. The
said property was purchased by Anthonysamy alias Hariharan, the second
respondent herein, in Court auction. In pursuance of the Court’s order, the
Court Ameen delivered the property to the second respondent. Questioning the
identity of the property, the petitioner applied a petition challenging the
delivery in E.A.No.78 of 2002. The said application was dismissed by the
learned District Munsif. Hence, this civil revision petition.

2. According to the petitioner, the property in question, bearing
Door No.6/56-G, was delivered instead of the house bearing Door No.6/56 and as
such, the said property has to be delivered back to the petitioner.

3. Assailing the impugned order dated 1.8.2003 in E.A.No.78 of 2002 ,
learned counsel for the petitioner would state that the learned District
Munsif, instead of invoking Section 144 of the Civil Procedure Code for
re-delivery, wrongly applied Order 21 Rules 99, 100 and 101 C.P.C. and
dismissed the petition, and as such, the order impugned is liable to be
interfered with.

4. I have carefully considered the submissions made by learned
counsel for the petitioner and also gone through the typed set of papers and
the impugned order.

5. This case has got a chequered history.

(a) Madasami, the first respondent herein filed the suit in O.S.No.5
66 of 1990 against the petitioner, for damages of Rs.5,000/- and the same was
decreed.

(b) For recovery of the said amount, the said Madasami filed execution
petition in E.P.No.232 of 1991 under Order 21 Rules 37 and 38 C.P.C. for
arrest. The petitioner immediately appeared before the Court and represented
that instead of recovery of the money, he is prepared to agree for attachment
of his house bearing Door No.6/56 and after the sale of the property through
Court auction, the decree amount could be realised. Therefore, the said E.P.
was dismissed on 7.9.1994.

(C) Then, for bringing the property in question in auction, necessary
application has been filed in E.P.No.71 of 1997 under Order 21 Rules 54, 66
and 72 C.P.C. In the sale, Anthonysamy alias Hariharan, the second respondent
herein was the successful bidder and the sale was also confirmed on 2.8.1999.

(d) Then, for recovery, he filed an application in E.A.No.76 of 2000
under Order 21 Rule 95 C.P.C. Accordingly, the delivery was ordered. When
the Court Ameen went to the spot for delivery of the property, he found that
there was a mistake in the Door Number. Therefore, the warrant was returned
to the Court.

(e) Again, another application has been filed by Anthonysamy in
E.A.No.132 of 2001 for correcting the Door Number. Accordingly, on 10.9.2001,
after hearing both parties, the order was passed, correcting the Door Number
of the property.

(f) Thereafter, on 26.9.2001, the Court Ameen came with the parties
and in their presence, the property in question has been taken delivery and
was handed over to the auction purchaser, the second respondent herein.

6. Admittedly, there was no challenge of the earlier decree and
subsequent orders passed in several execution petitions. At that stage, the
petitioner choose to file the application under Order 21 Rules 99, 100 and 101
C.P.C. in E.A.No.78 of 2002 for re-delivery, since the property which was
delivered to the auction purchaser, is not the property in question and as
such, there was a mistaken identity. This application was filed in 2002. A
counter has been filed to the said E.A. and after hearing the parties, by
order dated 1.8.2003, the application filed by the petitioner was dismissed.

7. The only contention urged by learned counsel for the petitioner is
that the application was filed only under Section 144 C.P.C. and as such,
restoration of the property must have been ordered. Chronological events
narrated earlier would indicate that this question relating to the wrong Door
Number of the property in question, has already been decided in E.A.No.132 of
2001, in the order dated 10.9.2001 itself. Further, the impugned order would
indicate that the application has been filed by the petitioner under Order 21
Rules 99, 100 and 10 1 C.P.C. and under Order 26 Rules 1 and 2 and Section
144 C.P.C.

8. As correctly pointed out by the executing Court, Order 21 and
Order 26 C.P.C. would relate to the person who is other than the
judgment-debtor. Admittedly, the petitioner is the judgment-debtor and as
such, these provisions would not apply to the petitioner.

9. Section 144 C.P.C. reads as follows:

“Application for restitution: (1) Where and in so far as a decree or an order
is varied or reversed in any appeal, revision or other proceeding or is set
aside or modified in any suit instituted for the purpose, the Court which
passed the decree or order, shall on the application of any party entitled to
any benefit by way of restitution or otherwise, cause such restitution to be
made as will, so far as may be, place the parties in the position which they
would have occupied but for such decree or order or such part thereof as has
been varied, reversed, set aside or modified; and, for this purpose, the Court
may make any orders, including orders for the refund of costs and for the
payment of interest, damages, compensation and mesne profits, which are
properly consequential on such variation, reversal, setting aside or
modification of the decree or order.”

10. Even Section 144 C.P.C. would not apply to the present case,
since there is no material to show that the decree is varied or reversed in
any appeal, revision or other proceeding or is set aside or modified in any
suit instituted for the purpose. A reading of Section 14 4 C.P.C. would
indicate that the Court which passed the decree or order, on the application
of any party entitled to any benefit by way of restitution, may order for
restitution, if the decree is varied or reversed in any appeal, revision or
other proceeding or is set aside or modified in any suit instituted for the
purpose.

11. A reading of the petition filed by the petitioner before the
executing Court indicates that it does not specify the requirements of Section
144 C.P.C. It is not the case of the petitioner that the decree which was
originally passed, was varied or reversed by any other appellate forum.
Therefore, the observation made by the executing Court relating to the
attitude of the petitioner, namely that he lacks bona-fide, in my view, is
perfectly justified.

12. Hence, in my view, the civil revision petition is misconceived
and as such, the impugned order is liable to be confirmed. Accordingly, while
confirming the impugned order, the civil revision petition is dismissed at the
admission stage itself. Consequently, C.M.P.Nos.2 856 and 2857 of 2004 are
closed.

Index: Yes
Internet: Yes

cs

To
District Munsif, Srivaikundam.

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