Madras High Court
N.Jayachandran vs R.Vijayabalan ... 1St on 7 December, 2021
CRP Nos.2636, 2647 & 2629 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
CRP Nos.2636, 2647 & 2629 of 2021
and
CMP No.19513 of 2021
1.N.Jayachandran
2.R.Sathyavathy
3.N.Ravichandran
4.N.Ramachandran
5.G.Nirmala ... Petitioners in all CRPs
Vs
1.R.Vijayabalan ... 1st Respondent in CRP.2636 &
2629 of 2021 and 2nd Respondent
in CRP.2647 of 2021
2.R.Nallathambi ... 2nd Respondent in CRP.2636 &
2629 of 2021 and 1st Respondent
in CRP.2647 of 2021
Prayer in CRP.Nos.2636 & 2647 of 2021: Civil Revision Petitions filed
under Article 227 of the Constitution of India against the Order and Decretal
order dated 23.07.2021 in REA.Nos.1 and 3 of 2019 in REP.No.169 of 2018
in O.S.No.862 of 1984 respectively on the file of the I Additional
Subordinate Judge, Salem.
https://www.mhc.tn.gov.in/judis
CRP Nos.2636, 2647 & 2629 of 2021
Prayer in CRP.No.2629 of 2021: Civil Revision Petition filed under Article
227 of the Constitution of India against the Order and Decretal order dated
23.07.2021 in REP.No.169 of 2018 in O.S.No.862 of 1984 on the file of the
I Additional Subordinate Judge, Salem.
(In all CRPs)
For Petitioner : Mrs.AL.Ganthimathi
COMMON ORDER
These three revisions arise against the execution proceedings. The
petitioners herein, who are the legal representatives of the first plaintiff in
O.S.No.862 of 1984 sought to execute a decree for specific performance in
the said suit.
2.The suit was originally decreed on 13.11.1986. There was an
appeal to this Court, which was dismissed and a further Letters Patent
Appeal to the Division Bench of this Court, was dismissed on 29.09.2004,
confirming the judgment and decree of the trial Court.
3.In 2006, the second plaintiff in the suit sought execution of the
decree in REP.No.94 of 2006. The said Execution Petition came to be
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CRP Nos.2636, 2647 & 2629 of 2021
allowed and on appeal by the judgment debtors in CMA.No.73 of 2006, it
was held that the Execution Petition itself was not maintainable and the E.P.
came to be dismissed. The order in CMA.No.73 of 2006 came to be passed
on 23.12.2009. Thereafter, the present execution petition was filed by the
petitioners herein, who are the legal representatives of the first plaintiff in
the said suit on 17.08.2017. Upon receipt of notice, the original second
plaintiff in the suit one Mr.R.Nallathambi filed an application in REA.No.3
of 2019 seeking rejection of the E.P. on the ground that it is barred by
limitation. The only defence that was projected by the petitioners to the
claim that the E.P. was barred by limitation, is the pendency of the CMA and
the proceedings before the Court in REP.No.94 of 2006.
4.According to the petitioners, if the time taken by those
proceedings is excluded, the present Execution Petition would be within 12
years from the date of the decree. The sum and substance of the argument is
that Section 14 of the Limitation Act would apply since proceedings were
pending.
5.The Executing Court upon consideration of the effect of Section
14 held that the petitioners cannot invoke the benefit of exclusion of time
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CRP Nos.2636, 2647 & 2629 of 2021
provided under Section 14 and hence, the Execution Petition is barred by
time. On the said conclusion, the learned Subordinate Judge allowed
REA.No.3 of 2019 and dismissed REP.No.169 of 2018. REA.No.1 of 2019,
which is for an injunction was also dismissed. Hence, the three revisions.
6.Heard Mrs.AL.Ganthimathi, learned counsel appearing for the
petitioners.
7.Mrs.Ganthimathi would submit that the pendency of the CMA
actually prevented the petitioners from filing an Execution Petition. I am
unable to concur with her submission. Even in the suit, it was found that the
first plaintiff whose L.R.s are the petitioners before me had assigned her
right in favour of the second plaintiff. The decree itself was passed directing
execution of sale deed in favour of the first plaintiff or in favour of her
nominee the second plaintiff. Therefore, the second plaintiff sought to
execute the decree in REP.No.94 of 2006 and the said attempt failed. Now,
the first plaintiff namely, the original agreement holder had come up with
the instant application seeking execution of the decree. As already stated the
decree was confirmed by the Division Bench of this Court in a Letters
Patent Appeal on 29.09.2004. Therefore, the last date for filing the E.P. was
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CRP Nos.2636, 2647 & 2629 of 2021
12 years from 29.09.2004 i.e., 29.09.2016. The Execution Petition in
E.P.No.169 of 2018 was filed on 17.08.2017. On the face of it, the
Execution Petition is barred by time. An attempt is made to invoke Section
14. Section 14 provides for exclusion of time taken in bonafide prosecution
of proceedings in the Court without jurisdiction. The petitioners never
approached the Court seeking execution earlier and now they cannot take
shelter under the proceedings taken by the other plaintiff, who also
ultimately failed in getting a sale deed executed in his favour. By no stretch
her imagination can Section 14 be invoked by the petitioners, who were
sitting on the fence and watching the proceedings. The petitioners were also
parties to CMA.No.73 of 2006. So, they were aware of the disposal of the
CMA. Even, thereafter they did not take any steps to seek execution.
8. Be that as it may, once it is found that Section 14 does not
apply, the execution proceeding is clearly out of time and I do not find any
error or material irregularity in the order of the trial Court in allowing
REA.No.3 of 2019 seeking to strike of the E.P. The other two orders in
R.E.A.No.1 of 2019 and REP.No.169 of 2018 are consequential upon the
allowing of REA.No.3 of 2019. Therefore, all the three Revisions fail and
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CRP Nos.2636, 2647 & 2629 of 2021
are accordingly dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
07.12.2021
vs
Index: No
Speaking order
To:
1.The I Additional Subordinate Judge,
Salem.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
CRP Nos.2636, 2647 & 2629 of 2021
R.SUBRAMANIAN, J.
vs
CRP Nos.2636, 2647 & 2629 of 2021
and
CMP No.19513 of 2021
07.12.2021
https://www.mhc.tn.gov.in/judis
