Madras High Court
P.F.Sumaiyya Banu vs Syed Mohammed Maheen on 23 January, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.03.2021
DELIEVRED ON : 22.06.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
C.R.P(MD)No.212 of 2021
and
C.M.P.(MD).No.1304 of 2021
P.F.Sumaiyya Banu .. Petitioner /
Respondent / Defendant/
Judgment Debtor
Vs.
Syed Mohammed Maheen .. Respondent /
Petitioner / Plaintiff /
Decree Holder
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the order, dated 23.01.2021, passed in
E.P.No.1 of 2021 in O.S.No.139 of 2016 by the learned Principal District
Munsif, Padmanabhapuram.
For Petitioner : Mr.V.Meenakshisundaram
For respondent : Mr.M.Sengu Vijay
ORDER
This civil revision petition has been filed by the revision
petitioner / defendant, challenging the order 23.01.2021 passed in
E.P.No.1 of 2021 in O.S.No.139 of 2016 by the learned Principal District
Munsif Court, Padmanabhapuram.
https://www.mhc.tn.gov.in/judis/
2. The brief facts leading to the filing of this revision petition are
as follows:
The petitioner and the respondent are wife and husband. The
respondent divorced the petitioner by pronouncing Trible Talaq. Stating
that the petitioner/wife herein trespassed into the suit property and she
is on wrongful possession, the respondent/husband as plaintiff has filed
the suit in O.S.No.139 of 2016 for recovery of possession and mesne
profits. After trial, the trial Court, by judgment dated 11.11.2020,
decreed the suit in part and thereby, directed the petitioner/wife to
deliver the suit property in favour of the plaintiff within two months.
Aggrieved by the said judgment and decree, on 15.12.2020 the
petitioner/wife filed an appeal suit in A.S.No.25 of 2020 on the file of the
Subordinate Court, Padmanabhapuram and seeking to stay the
operation of the judgment and decree in O.S.No.139 of 2016, the
petitioner/wife filed a petition in I.A.No.1 of 2020. While so, on
18.01.2021 the respondent/husband filed an execution petition in
E.P.No.1 of 2021 on the file of the Execution Court. On 23.01.2021, the
Execution Court has passed an order that “in view of order 21 Rule 22
C.P.C. notice is dispensed with. Delivery by 23/02/2021. Batta in 3
days.” Aggrieved by the order of delivery without notice, the
petitioner/wife has come up with this Civil Revision Petition.
https://www.mhc.tn.gov.in/judis/
3. The learned counsel for the petitioner submitted that the Court
below ought not to have ordered delivery without issuing any notice to
the petitioner, especially when the appeal suit was pending.
4. The learned counsel for the respondent submitted that the
Court below had acted within the ambit of law in ordering delivery of
possession without notice by invoking Order 21 Rule 22 C.P.C.
Therefore, the order passed by the Court below need not be interfered
with.
5. Heard the learned counsel appearing for both sides and perused
the materials available on record.
6. As per order 21 Rule 22 C.P.C., notice could be dispensed with,
if execution petition is filed within two years from the date of decree. In
this case, as the execution petition filed within two years from the date
of the decree, on 23.01.2021 the Execution Court by invoking Order 21
Rule 22 C.P.C., dispensed with the notice to the petitioner/defendant
and ordered delivery by 23.02.2021. Hence, this Court does not find
any valid reason to interfere with the order passed by the Executing
Court.
https://www.mhc.tn.gov.in/judis/
7. Though it is stated by the petitioner that she filed appeal suit as
early as on 15.12.2020 and the respondent purposefully evaded notice
in the appeal and thereafter, paper publication has been ordered by the
first appellate Court, the fact remains that notice in the appeal has not
been served before the order of delivery and the paper publication was
ordered by the first appellate Court only on 23.01.2021 ie., the date on
which the delivery was ordered and as such, paper publication was
made on 31.01.2021. More over, a perusal of record shows that when
the matter came up for admission on 12.02.2021, this Court granted an
order of interim stay for a period of eight weeks and then, when the
matter came up for hearing on 12.03.2021, it is brought to the notice of
this Court by the learned counsel for the respondent that now the
petitioner obtained an interim order in the appeal suit. Therefore, there
is no impediment for the petitioner to proceed with the appeal suit. In
view of the above, this Court is not inclined to interfere with the
impugned order.
8. In the result, this Civil Revision Petition is closed. No costs.
Consequently, connected miscellaneous petition is also closed.
22.06.2021
Index : Yes/No
Internet: Yes/No
bala
https://www.mhc.tn.gov.in/judis/
To
1.The Principal District Munsif,
Padmanabhapuram.
2.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
J. NISHA BANU, J.,
bala
Pre-delivery order made in
C.R.P(MD)No.212 of 2021
22.06.2021
https://www.mhc.tn.gov.in/judis/
