S.Jayamani vs G.Vijayan
2021 Latest Caselaw 9825 Mad

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                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 17.04.2021

                                                             Coram

                                      The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                                               C.R.P. (NPD) No.863 of 2021
                                                           and
                                                  C.M.P.No.7098 of 2021



                     S.Jayamani
                                          ..     Petitioner/Petitioner/Respondent/Defendant

                                                              Vs

                     G.Vijayan            ..     Respondent/Respondent/Petitioner/Plaintiff




                               Civil Revision Petition filed under Section 115 of Code of Civil
                     Procedure, to set aside the fair and decreetal order dated 19.02.2021
                     made in E.A.No.10 of 2019 in E.P.No.331 of 2018 in O.S.No.93 of
                     2011 on the file of the Learned Special Officer cum Additional Sub
                     Judge, Puducherry.


                                    For Petitioner      ..     Mr.R.Thiagarajan


                                    For Respondent      ..     No appearance




https://www.mhc.tn.gov.in/judis/
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                                                              ORDER

O.S.No.93 of 2011 had been instituted by G.Vijayan against

S.Jayamani seeking a judgment and decree to pay sum of

Rs.2,04,000/- together with interest at 12% per annum and

Rs.1,50,000/- from the date of plaint till date of realization.

2.The defendant joined in the proceeding and filed his written

statement. Based on the pleadings, issues were framed. Both the

plaintiff and the defendant examined their witnesses. The plaintiff also

marked documents. On the side of plaintiff two witnesses were

examined and on the side of the defendants three witnesses were

examined. Finally, the suit was decreed by judgment dated

11.08.2017. The defendant, thereafter, filed an Appeal Suit, however

with delay. The matter is still pending before the Appellate Court and

the application seeking condonation of delay is also pending.

3.In the meanwhile, the plaintiff filed E.P.No.331 of 2018. In the

Execution Petition, the plaintiff sought to bring the property which had

been given in the schedule to the Execution Petition for sale. In the

said Execution Petition again the defendant remain exparte.

Thereafter, the defendant filed E.A.No.10 of 2019 seeking to condone

https://www.mhc.tn.gov.in/judis/

the delay of 119 days in filing application to set aside the exparte

order in the Execution Petition.

4.Among other contentions, in the affidavit filed in support of the

said E.A.No.10 of 2019, it had been very specifically stated that the

defendant was not the owner of the schedule mentioned property. It

had been observed in the course of the order, that the defendant

herein had already sold the said property in the year 2018. It is

therefore, seen that the defendant herein had been very careful in

preventing the property from being brought for sale by the decree

holder.

5.Mr.R.Thiyagarajan, learned counsel appearing for the

petitioner / defendant sought indulgence of this Court to take a

sympathetic view and permit the petitioner herein to participate in the

Execution Petition.

6.However, a specific observation of the learned Judge in the

course of the order which is now under question in this present

Revision Petition is that, the present petitioner / defendant had very

specifically stated that the property in the Execution Petition had been

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sold away by the petitioner / defendant way back in the year 2018

itself and therefore, the attachment order passed by the Court is not at

all valid. It is therefore, seen that the petitioner / defendant has been

more cleverer than the decree holder. He has actually sold away the

property which is now sought to be attached. The property is not in

existence. That is an issue which the Trial Court will have to address.

7.I am confident, that it will be addressed in the manner known

to law since, the suit is of the year 2011 and the said sale had been

taken place in the year 2018 pending the suit.

8.With respect to the reasons for condonation of the delay of

119 days, no specific reason had actually been given. The only

statement made is that an Appeal had been filed before the Principal

District Court, along with an application to condone the delay of filing

an Appeal and therefore, permission must be given to participate in

the Execution Petition.

9.I do no find this to be a valid reason. The petitioner/defendant

is guilty of latches right from the beginning. He suffered a decree.

Therefore, he filed an Appeal Suit, but with delay. The application to

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condone the delay is still pending. Thereafter, he should have

participated in the Execution Petition. He permitted the Execution

Petition to be ordered exparte. Thereafter, he filed an application to

set aside the exparte order with a delay of 119 days.

10.On the basis of the above facts, I find no infirmity in the

order passed by the learned Special Officer cum Additional Subordinate

Judge, Puducherry. The order is upheld. The present Civil Revision

Petition is dismissed. No order as to costs. Consequently, the

connected Miscellaneous Petition is closed.

17.04.2021 Internet:Yes/No Index:Yes/No smv

To The Additional Subordinate Court, Puducherry.

C.V.KARTHIKEYAN,J.

https://www.mhc.tn.gov.in/judis/

smv

C.R.P.(NPD) No.863 of 2021

17.04.2021

https://www.mhc.tn.gov.in/judis/