Madras High Court
R.Dhanabal vs V.Subbaiyan (Died) on 16 July, 2021
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2021
CORAM
THE HON'BLE MR. JUSTICE A.D. JAGADISH CHANDIRA
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
and
M.P. No. 1 of 2014
R.Dhanabal ... Petitioner in both C.R.P.s
-vs-
1. V.Subbaiyan (Died)
2. Venkittammal
3. S.Shanthamani
4. Saroja
5. S.Nagaraj
6. Muthulakshmi ... Respondents in both C.R.P.s
Prayer in C.R.P. (NPD) No. 4018 of 2014:- Civil Revision Petition filed under
Article 227 of the Constitution of India, 1950, praying to issue appropriate
directions to the Court below to number the E.A. S.R. R. 4877 of 2011 in E.P.
No. 5 of 2009 presented on 07.12.2011 by the Petitioner and to decide the said
application on merits.
Prayer in C.R.P. (NPD) No. 4019 of 2014:- Civil Revision Petition filed under
Article 227 of the Constitution of India, 1950, praying to issue appropriate
directions to the Court below to number the E.A. S.R. 4877/1 of 2011 in E.P.
No. 5 of 2009 returning the application on 05.06.2012 by the Petitioner and to
decide the said application on its merits.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
For Petitioner : Mr. N.Damodaran
(in both C.R.P.s)
For Respondents : No Appearance
(in both C.R.P.s)
COMMON ORDER
(The case has been heard through video conference)
These Civil Revision Petitions have been field seeking for a direction to
the Court below to number the applications in E.A. S.R. R. 4877 of 2011 and
E.A. S.R. 4877/1 of 2011 in E.P. No. 5 of 2009 presented by the Petitioner and
to decide the said applications on merits.
2. The Learned Counsel for the Petitioner would submit that the deceased
First Respondent filed the suit in O.S. No. 345 of 2004 before the District
Munsif Court, Avinashi seeking for recovery of money of Rs.47,600/- with
interest at the rate of 12% per annum for the amount of Rs.35,000/- from the
date of suit till the date of realization. The Trial Court allowed O.S. No. 345 of
2004 by judgment and decree dated 29.07.2007. He would further submit that
since even as per the deceased First Respondent, the Petitioner along with one
Muthulakshmi had borrowed a sum of Rs. 70,000/- from the deceased First
Respondent on 01.11.1999 for their business and had jointly executed a demand
promissory note in his favour to repay the same with interest of 12% per annum
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
on demand, whereas the deceased First Respondent had filed the suit only
against the Petitioner, leaving the said Muthulakshmi and thereby, the decree is
non-est and inexecutable. He would further submit that the case of the deceased
First Respondent is that the said Muthulakshmi paid a sum of Rs.47,250/- on
01.10.2002 towards part of the principal and interest and necessary
endorsement was made in the pro-note on the back side to that effect. He would
further submit that since the remaining balance principal amount along with the
interest was not paid, the deceased First Respondent initiated legal proceedings
as against the Petitioner after causing notice to the served, seeking for the sum
of Rs.47,600/- with interest at 12% per annum for Rs. 35,000/- from the date of
suit till the date of realization. He would further submit that after obtaining the
decree, the deceased First Respondent had filed E.P. No. 5 of 2009 on the file
of the District Munsif Court, Avinashi seeking to enforce the decree by
attaching the sale of the schedule mentioned properties. He would further
submit that though the decree amount was only Rs.47,600/-, the property worth
about Rs.1,00,00,000/- has been brought on sale by the deceased First
Respondent. He would further submit that there was collusion between the
deceased First Respondent and the Auction Purchaser and certain other
irregularities were also committed by the deceased First Respondent and the
Auction Purchaser. He would further submit that certain other properties
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
belonging to the Petitioner and certain other Survey Nos. belonging to the
Petitioner which were not part of the schedule to the suit in O.S. No. 345 of
2004 were also added in E.P. No. 5 of 2009. He would further submit that by
irregularity, the property was brought to sale and the sale was also effected. He
would further submit that coming to know of the irregularities, the Petitioner
filed an application in E.A. S.R. R. 4877 of 2011 under Order XXI Rule 90 read
with Section 151 of the Code of Civil Procedure, 1908 seeking to set aside the
sale dated 14.10.2011 on the ground of irregularity and other reasons and the
Petitioner also filed an application in E.A. S.R. 4877/1 of 2011 under Order
XXI Rule 90 read with Section 151 of the Code of Civil Procedure, 1908
seeking to stay the proceedings of E.P. No. 5 of 2009 till the disposal of E.A.
S.R. R. 4877 of 2011. He would further submit that the said applications filed
on 20.10.2011 were returned for the reasons that how these applications are
maintainable without the payment of sale amount has to be clarified. He would
further submit that the Petitioner has given his clarification that the applications
were filed under Order XXI Rule 90 of the Code of Civil Procedure, 1908 and
hence, payment or deposit of amount is not compulsory. He would further
submit that the Petitioner as a bonafide owner of the property, who is affected
by such illegal proceeding and thereby, he has every right to file applications
under Order XXI Rule 90 of the Code of Civil Procedure, 1908 without
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
payment or deposit of the amount, whereas the Execution Court without
considering the same, once again returned the same without numbering it and
without hearing the parties. He would further submit that the Execution Court
committed error in returning the applications without hearing the Petitioner
against which, the present Civil Revision Petitions have been filed.
3. He would further submit that the Division Bench of this Court in the
Judgment reported in [(1995) 2 CTC 632] (Ramaswamy Gounder -vs-
T.S.Ramaswamy Gounder) has held that the case of the Petitioner has to be
considered on merits and it is not necessary that the amount should be
compulsorily paid. He would further submit that the Division Bench of this
Court has also held that the proviso in Order XXI Rule 90 of the Code of Civil
Procedure, 1908, only enables the Court at the initial stage after hearing the
applicant to find out whether there is a prima facie case for setting aside the
sale or not and if that be so whether in the facts and circumstances, there is a
case for directing any security. He would further submit that this Court in the
Judgment reported in [(2007) 2 CTC 632] (Lathislal -vs- Lawarance
Yesudhasan), has held as follows:-
"14. I am unable to subscribe my views to the said
argument made by the learned counsel for the respondent. When
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
an Application under Order 21, Rule 90, C.P.C. was filed on
6.10.2004 and the same has been returned on 8.10.2004 by the
Court below granting one week time for making some
compliance, the Court below should have awaited till the time
expires for compliance of the return, namely, till 15.10.2004 and
thereafter, should have passed an order confirming the sale after
deciding the application filed by the petitioner under Order 21,
Rule 90, C.P.C. The hurry in which the order of confirmation of
sale passed by the Court below on 11.10.2004 itself is totally
erroneous."
4. He would further submit that the order passed by the Execution Court
is erroneous and thereby, he would seek that a direction may be issued to the
Execution Court number the applications and hear the parties and pass
appropriate orders. He would further submit that the even during the pendency
of the applications, the Petitioner has made payment of Rs.10,000/-, Rs.2,500/-
and Rs. 2,000/- on 29.08.2011, 10.10.2011 and 30.09.2011 respectively
towards part satisfaction of the decree amount. He would further submit that
while so, without any order on the applications, the Execution Court had
confirmed the sale on 02.07.2012 which is totally illegal. He would further
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
reiterate that the Execution Court may be directed to number the applications
and take it on file and hear the parties on merits.
5. Though notice has been served on the Respondents and Mr. R.Kumara
Raja, Learned Counsel has filed vakalat on behalf of the Second and Sixth
Respondents, there is no representation for the Respondents today. However,
this Court finds that it is a matter between the Petitioner and the Court, it may
not be necessary to hear the Respondents.
6. Heard the Learned Counsel for the Petitioner and perused the materials
available on record.
7. This Court finds that the Execution Court without hearing the
Petitioner on merits, had returned the applications and thereby, committed error
and the order of return of the petitions deserves to be set aside.
8. At this juncture, Learned Counsel for the Petitioner would bring to the
notice of this Court that on the point of territorial jurisdiction, the files are now
transferred from the District Munsif Court, Avinashi to the I Additional District
Munsif Court, Coimbatore. He would further pray that the original applications
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
filed along with these Civil Revision Petitions may be returned to the Petitioner
so as to enable him to present it before the I Additional District Munsif Court,
Coimbatore.
9. Taking into consideration the facts and submissions, the I Additional
District Munsif Court, Coimbatore is directed to number E.A. S.R. R. 4877 of
2011 and E.A. S.R. 4877/1 of 2011 and after affording opportunity of hearing
to the Petitioner in consonance with the principles of natural justice, pass
reasoned orders on merits and in accordance with law. It is made clear that till
such time, the applications are numbered and orders are passed, further
proceedings in E.P. No. 5 of 2009 shall stand stayed.
10. In the result, these Civil Revision Petitions are allowed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
16.07.2021
vjt
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
Note: Registry is directed to return the original
applications in E.A. S.R. R. 4877 of 2011 and
E.A. S.R. 4877/1 of 2011 filed along with these
Civil Revision Petitions to the Petitioner
under written acknowledgment after
retaining a copy of the same for record.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
To
1. The District Munsif Court,
Avinashi.
2. I Additional District Munsif Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
A.D. JAGADISH CHANDIRA, J.
vjt
C.R.P. (NPD) Nos. 4018 and 4019 of 2014
16.07.2021
https://www.mhc.tn.gov.in/judis/
