Madras High Court
A.Krishnamoorthy Chettiar vs Shivakozhunthu Chettiar on 1 December, 2021
C.R.P.(NPD).No.3239 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD).No.3239 of 2015
and
M.P.Nos.1 & 2 of 2015
A.Krishnamoorthy Chettiar .. Petitioner
Vs.
1.Shivakozhunthu Chettiar
2.Jothi Ammal .. Respondents
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decretal order dated 20.03.2014
made in E.P.No.85 of 2010 in O.S.No.649 of 2005 on the file of the Principal
District Munsif Court, Cuddalore.
For Petitioner : Mr.K.Arumugathai
for M/s.P.Veena Suresh
For Respondents : Mr.R.Gururaj
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
This Civil Revision Petition is filed against the fair and decretal order
dated 20.03.2014 made in E.P.No.85 of 2010 in O.S.No.649 of 2005 on the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3239 of 2015
file of the Principal District Munsif Court, Cuddalore.
2.The petitioner is the decree holder in O.S.No.649 of 2005 and
petitioner in E.P.No.85 of 2010. The petitioner filed the said suit against the
respondents for recovery of money. The said suit was decreed by the
judgment and decree dated 28.09.2007. The petitioner filed E.P. for
attachment of sale of the properties mentioned in the E.P. to realise the
decretal amount stating that the said properties mentioned in the E.P. belongs
to respondents. The 1st respondent is husband of 2nd respondent and the 1st
respondent remained exparte. The 2nd respondent filed counter statement
stating that properties mentioned in E.P. does not belong to the respondents
and properties are not in possession of the 2nd respondent. Hence, attachment
and sale of properties cannot be ordered. The 2nd respondent has also stated
that the amounts claimed in the E.P. is not correct and the amount claimed is
far and above the decretal amount and prayed for dismissal of E.P.
3.The learned Judge framed necessary points for consideration and held
that petitioner has not produced any records to show that the petition
mentioned properties belongs to 2nd respondent. In the absence of documents,
the Court refused to give order in favour of petitioner and dismissed the E.P.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3239 of 2015
4.Against the said order of dismissal dated 20.03.2014 made in
E.P.No.85 of 2010, the petitioner has come out with the present Civil Revision
Petition.
5.The learned counsel appearing for the petitioner referred to copy of
the registered settlement deed dated 24.03.2009 executed by the 1 st
respondent in favour of the 2nd respondent and submitted that the 1st
respondent deliberately, in order to defeat the interest of the petitioner, settled
the property in favour of the 2nd respondent. Encumbrance certificate
produced by the petitioner reflects the settlement executed by 1st respondent in
favour of 2nd respondent. The learned Judge without properly considering the
documents, dismissed the E.P. on technical ground and prayed for allowing
the Civil Revision Petition.
6.The learned counsel appearing for the respondents submitted that the
respondents are not owners of petition mentioned properties and the petition
mentioned properties are not in possession of 2nd respondent. The learned
Judge considering the fact that petitioner has not produced any document
before the Execution Court to show that 2nd respondent is owner of the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3239 of 2015
petition mentioned property, dismissed the E.P. There is no error in the order
of the learned Judge and prayed for dismissal of the Civil Revision Petition.
7.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the respondents and perused the entire
materials on record.
8.From the contention of the learned counsel appearing for the
petitioner and copy of the registered settlement deed filed in the typed set of
papers, it is seen that the petition mentioned properties originally belongs to
1st respondent, who by the registered settlement deed dated 24.03.2009 settled
the properties in favour of 2nd respondent. According to the learned counsel
appearing for petitioner, the encumbrance certificate filed by the petitioner in
the E.P. proceedings clearly reveals that properties mentioned in E.P. belongs
to 2nd respondent. The said contention has considerable force and is
acceptable. In view of the same, the order of the learned Judge dismissing the
E.P. is set aside. The learned Principal District Munsif Judge, Cuddalore, is
directed to take E.P.No.85 of 2010 on file and pass orders on merits and in
accordance with law after giving opportunity to the parties to put forth their
case. It is open to the petitioner and respondents to let in oral and
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3239 of 2015
documentary evidence, if they so desire and advised.
9.With the above directions, the Civil Revision Petition is allowed.
Consequently, connected Miscellaneous Petitions are closed. No costs.
01.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned Principal District Munsif Judge,
Cuddalore.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.3239 of 2015
V.M.VELUMANI, J.
krk
C.R.P.(NPD).No.3239 of 2015
01.12.2021
https://www.mhc.tn.gov.in/judis
