Madras High Court
M/S.Essar Shipping Ltd vs The Tamil Nadu Water Supply And ... on 2 July, 2021
O.S.A.No.49 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.07.2021
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH
and
THE HON'BLE MS.JUSTICE R.N.MANJULA
O.S.A.No.49 OF 2019 &
C.M.P.No.5017 of 2019
M/s.Essar Shipping Ltd.,
No.26, Haddows Road,
Chennai-600 006. ... Appellant
versus
1. The Tamil Nadu Water Supply and Drainage Board,
rep. by its Special Chief Engineer,
Veeranam Project, Chepauk,
Chennai-600 005.
2. M/s.Sathyanarayana Brothers Private Ltd.,
No.25, Edward Elliots Road,
Chennai-600 004. .... Respondents
Prayer: This Original Side Appeal is filed under Order XXXVI Rule 1/11 of
O.S.Rules against the order of the learned single Judge dated 19.11.2008 in
Application Nos.7024 & 7025 of 2018 in E.P.No.70 of 2015.
For Appellant .. Mr.Manoj Menon for
M/s.Menon
For Respondents .. Ms.S.Thamizhrasi for R1
No representation for R2
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1
O.S.A.No.49 of 2019
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
This Original Side Appeal has been directed against the order of the
learned single Judge dated 19.11.2008 made in Application Nos.7024 &
7025 of 2018 in E.P.No.70 of 2015.
2. The appellant herein is one of the Judgment Debtors and the Tamil
Nadu Water Supply and Drainage Board/1st respondent herein is the Decree
Holder in E.P.No.70 2015. The said E.P. was filed by the 1st respondent,
seeking to direct the appellant herein to deliver the possession of a Crane.
The said E.P. was resisted by the appellant by filing a counter affidavit, inter
alia, stating that the E.P. itself is not maintainable since it was barred by
limitation as it was filed after a lapse of 14 years from the date of the decree.
Pending E.P., the 1st respondent sought for a direction to attach immovable
property of the appellant and filed a proof affidavit, wherein, the 1st
respondent was permitted to let in evidence by the learned Master. This was
objected by the appellant, contending that the 1st respondent cannot seek
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O.S.A.No.49 of 2019
different mode of execution that what was sought for in the E.P. and it would
amount to enlarging the scope of the E.P. However, the learned Master
rejected such contention. Questioning the same, the appellant herein has
moved applications in A.Nos.7024 and 7025 of 2019 before this Court. The
learned single Judge, by order, dated 19.11.2008, dismissed the applications.
Challenging the same, the present Writ Appeal has been filed by the
appellant.
3. The learned counsel for the appellant would contend that the
appellant has raised preliminary issue that the E.P.itself is not maintinable
since it was barred by limitation and therefore, the said preliminary issue
ought to have been decided before proceeding further. We do not think so.
The Execution Petition is meant to give effect to the decree. The issue
regarding limitation aspect, is a mixed question of fact and law which would
be taken into and dealt with by the Executing Court at the time of final orders
being passedin the Execution Petition. The law does not require to decide
the said issue as a preliminary issue. In such view of the matter, we do not
find any scope to interfere with the order passed by the learned single Judge
and hence, we confirm the same.
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O.S.A.No.49 of 2019
M.M.SUNDRESH, J.
and R.N.MANJULA, J.
suk
4. Accordingly, this Original Side Appeal along with connected
C.M.P. is dismissed. However, taking into consideration the fact that the
E.P. has been pending for the last six years, we request the learned Judge to
dispose of the same as expeditiously as possible.
(M.M.S., J.) (R.N.M., J.)
02.07.2021
Index: Yes/No
suk
O.S.A.No.49 of 2019
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