Madras High Court
Vallisan Pillai vs Thiruvaduthurai Adheenam on 15 April, 2021
C.R.P.No.196 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 15.04.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.196 of 2021 and
C.M.P. No.1801 of 2021
Vallisan Pillai ... Petitioner
Vs.
Thiruvaduthurai Adheenam
Thiruvaduthurai by Adheena Karthar
Sri-la-Sri Ambalavana
Pandara Sannathi ... Respondent
Civil Revision Petition is filed under Section 115 of Civil Procedure
Code to set aside the fair and decreetal order dated 21.12.2020 passed in
un-numbered petition ---/2020 in E.P.No.65 of 2006 in O.S.No.89 of 1989
on the file of learned Subordinate Judge, Chidambaram and prays for
setting aside the same.
For Petitioner : Mr.S.Sadasharam
1/8
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C.R.P.No.196 of 2021
ORDER
Aggrieved by the rejection of the unnumbered petition, viz., E.A.----
/2020 filed under Section 47 of CPC in E.P.No.65 of 2006 in O.S.No.59 /
1989 by the learned Subordinate Judge, Chidambaram with cost, the
present Civil Revision Petition has been filed under Section 115 of Civil
Procedure Code.
2. The case of the respondent before the court below in the suit in
O.S.No.89 of 1989 is that he had filed a suit directing the petitioner and
others to deliver the possession of the property and to pay a sum of
Rs.16,791.40/- being the arrears of rent. In the said suit, before the court
below, the respondent had stated that he is the owner of the property and
had leased out the property to the petitioner herein and the petitioner had
not paid the rent properly. As there was a willful default, arrears of rent and
the petitioner has also sublet the property, on the ground of sublease, the
respondent has preferred the said suit. Thereafter, a Written Statement
was filed by the petitioner herein / 1st defendant. The said suit was decreed
as early as on 17.02.1995. As against which, E.P.No.65 of 2006 was filed
by the respondent herein and pending adjudication in the present
Execution petition, Unnumbered Execution Appeal was filed by the
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C.R.P.No.196 of 2021
petitioner herein under Section 47 r/w Section 151 of CPC stating that the
respondent / decree holder is not the real owner of the suit property and
that he has got no locustandi to file the suit and further stated that the
respondent -trust being a private trust and the Tamilnadu City Tenants and
Protection Act is applicable, the decree passed by the court is not
executable. Moreover, it is the case of the respondent before the court
below that the said E.A. was rejected as not maintainable at the threshold
itself. As against the same, the petitioner / 1st defendant is before this
Court.
3. The learned counsel for the petitioner submits that the court below
ought not to have rejected the application filed under Section 47 CPC,
instead would have ordered notice, so that the application can be disposed
of, on merits, after recording evidence, if necessary. Further, the petitioner
is prohibited under the provisions of Section 47 CPC to file a separate suit
relating to the executability of the decree. The only remedy available for
the petitioner is to file an application under Section 47 CPC and in such a
case, the court below had failed to consider the application on merits after
notice to the respondent and in failing to do so and in rejecting the
application without numbering the case, the court below has committed an
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C.R.P.No.196 of 2021
serious error and therefore, the order passed by the court below is liable to
be set aside. Further, the learned counsel for the petitioner also contends
that since the notice has to be served and heard, there shall be a time
frame to be fixed by this Court, he pleaded.
4. Heard the learned counsel for the petitioner and perused the
documents placed on record carefully.
5. On perusing the order passed by the learned Subordinate Judge,
Chidambaram, it is seen that the said petition was rejected without being
numbered. Unless the petition is posted “for maintainability” before
numbering the petition filed by the party, the question of deciding such
application, on merits, is not correct. Even when a petition is filed and
posted “for maintainability” before the stage of numbering the petition, the
court can only decide on the maintainability issue. Though the petition is
posted for maintainability before numbering the same, if the said petition is
not maintainable, sufficient reasons have to be recorded therein.
6. At this juncture, it is pertinent to point out that the learned
Subordinate Judge, Chidambaram in an unnumbered E.A.No.---- of 2020,
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C.R.P.No.196 of 2021
has gone extensively on merits and recorded the circumstances under
which, the petition has to be rejected. Without going into the merits of the
order passed, it is clear that the learned Judge, even before the petition
could be numbered and notice being ordered, has rejected the same.
Even though the order passed by the learned Subordinate Judge,
Chidambaram, on merits, holds good and as far as the conduct of the
petitioner / Judgment debtor, the unnumbered E.A. can be dismissed, but
even for such dismissal, the procedures have to be followed. Merely
because the petitioner / Judgment debtor is trying to protract the issue,
that does not mean that the main proceedings can be compromised.
However, the procedures established under the Law has to be followed
scrupulously.
7. That apart, a petition was filed under Section 47 of CPC by the
petitioner / Judgment debtor, the said petition was not posted for
maintainability, but, on the other hand, the same was rejected on merits
without being numbered and objections being heard from the decree
holder. Under these circumstances, this Court is of the view that the
present revision has to be allowed only for the reason that the petition filed
under Section 47 CPC has to be decided only after ordering notice and
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C.R.P.No.196 of 2021
thereafter, an order can be passed on merits and due to the said erroneous
approach on the part of the said Judge, who had not followed the
procedures contemplated under the Law, the present Revision has to be
allowed.
In view of the above, order passed in Unnumbered E.A....../2020 in
E.P.No.65 of 2006 in O.S.No.89 of 1989 dated 21.12.2020 is set aside and
the matter is remanded to the learned Subordinate Judge, Chidambaram
and the said Judge is directed to number the petition filed under Section 47
of CPC by the petitioner / Judgment Debtor and decide the same after
issuing notice to the other side, the decree holder. Acceding to the request
of the learned counsel for the petitioner that since the notice has to be
served and heard, three months time is hereby fixed for completing the
said exercise, from the date of copy of the receipt of the said order and the
Revision petitioner herein shall not seek any adjournment and has to co-
operate with the court below for disposing the same.
In view of the above, the present Civil Revision Petition is disposed
of. Consequently, connected miscellaneous petition is closed. No costs.
15.04.2021
Index : Yes/No; Internet : Yes/No
Speaking /Non-Speaking Order
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C.R.P.No.196 of 2021
To
1. The Subordinate Judge,
Chidambaram,
2. The Section Officer,
V.R.Section,
High Court, Madras
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C.R.P.No.196 of 2021
V.BHAVANI SUBBAROYAN, J.,
ssd
C.R.P.No.196 of 2021 and
C.M.P. No.1801 of 2021
15.04.2021
https://www.mhc.tn.gov.in/judis/
