Madras High Court
Velmurugan vs Velayuthapadayachee on 7 June, 2021
C.R.P.(NPD).No.284 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.06.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(NPD).No.284 of 2021
and
C.M.P.No.2624 of 2021
1. Velmurugan
2. Velvezhi
3. Senthilmurugan ... Petitioners
Vs.
1. VelayuthaPadayachee
2. SaraswathiAmmal
3. T.Lakshmi ... Respondents
Civil Revision Petition is filed under Section 115 of Civil Procedure
Code, to set aside the fair and decretal order dated 30.09.2019 passed in
E.A.No.224 of 2019 in E.A.No.644 of 2011 in E.P.No.66 of 2004 in O.S.No.76
of 2002 on the file of Principal Subordinate Court, Vridhachalam.
For Petitioners : Mrs.R.Meenal
ORDER
This Civil Revision Petition has been filed against the fair and decretal
order dated 30.09.2019 passed in E.A.No.224 of 2019 in E.A.No.644 of 2011
in E.P.No.66 of 2004 in O.S.No.76 of 2002 on the file of Principal Subordinate
Court, Vridhachalam.
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C.R.P.(NPD).No.284 of 2021
2. The present E.A.No.224 of 2019 is filed under Order 6 Rules 17, 18
and Section 146 CPC to amend the petition in E.A.No.644 of 2011 filed by the
petitioners herein.
3. The case of the petitioners is that the suit in O.S.No.76 of 2002
which is a money suit was filed by one Velayutha Padayachee as against one
Saraswathi Ammal before the Principal Subordinate Court, Vridhachalam,
seeking to recover a sum of Rs.1,24,624/- with interest and costs. The said
suit was decreed on 23.01.2003. As against which, the decree holder
Velayutha Padayachee had filed E.P.No.66 of 2004. The said E.P was
allowed by the Court below and subsequently the schedule mentioned
property in the E.P was attached and the same was sold through court
auction on 14.09.2011. As against the order passed in E.P.No.66 of 2004 in
O.S.No.76 of 2002, the petitioners herein had filed E.A.No.644 of 2011 under
Order 21 Rule 90 CPC to set aside the decree and judgment in O.S.No.76 of
2002. Pending the said E.A.No.644 of 2011, E.A.No.224 of 2019 has been
filed by the petitioners herein under Order 6 Rules 17, 18 and Section 146
CPC seeking amendment in E.A.No.644 of 2011.
4. The revision petitioners had submitted that instead of 47 CPC, the
previous counsel wrongly quoted the petition under Order 21 Rule 90 CPC,
and if the petition is not quoted under the correct provisions of law, it will
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C.R.P.(NPD).No.284 of 2021
cause serious hardship to them and hence they sought for amendment of
provisions as under Section 47 CPC.
5. Denying the averments in E.A.No.224 of 2019, the decree holder
Velayutha Padayachee had filed a counter affidavit before the Court below
stating that the execution proceedings are pending for almost 8 years and
now the petitioners seek for amendment of provisions from Order 21 Rule 90
CPC to under Section 47 CPC and the same is not maintainable. The
Saraswathi Ammal borrowed money from the decree holder on 02.02.1996
and the decree was passed on 23.01.2003. The above petition has been filed
only to drag on the proceedings, and sought for dismissal of the petition with
costs.
6. The Subordinate Court, Virudhachalam, after considering the
averments and the submissions made by the learned counsel on both sides,
dismissed the E.A.No.224 of 2019 by order dated 30.09.2019. Aggrieved by
the same, the petitioners have filed this revision petition before this Court.
7. The learned counsel for the petitioners would vehemently submit
that the amendment sought for ought to have been allowed by the Court
below as the petitioners were not creating any new cause of action or making
any change in the main petition. Further, she would submit that quoting a
wrong provision of law would not affect the claim of the petitioners but the
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C.R.P.(NPD).No.284 of 2021
correction would prevent the respondents from pressing unnecessary
technical objection.
8. The learned counsel for the petitioners would also submit that by
ordering the amendment, the case could have been proceeded with, without
further delay and the dismissal of the application alone would protract the
proceedings. The Court below ought to have seen that the technical mistake
made by the previous counsel of the petitioners should not affect the rights of
the parties and the property which belongs to the Judgment Debtor was
brought for sale affecting the rights of the petitioners. Hence she prayed for
setting aside the order dated 30.09.2019.
9. Heard the learned counsel for the petitioners and perused the
materials available on record.
10. As it is seen from the orders passed by the Court below, the Court
below has held as follows :
“8) The petition under Order 21 Rule 90 CPC deals with
where any immovable property has been sold in Execution of
decree, the decree holder the purchaser or any other person
entitled to share in a ratable distribution of assets or whole
interest her affected by the sale may apply to the court to set
aside the sale on the ground of material irregularity or fraud in
publishing etc.,
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C.R.P.(NPD).No.284 of 2021
1. under Section 47 CPC is applicable question must
related to execution, discharge or satisfaction of decree.
2. Question must raised between the parties to the suit
which decree was passed or there representatives.
9) In the above matter the amendment has sought for the
petitioner is only to delay the execution indirectly what he could
not do directly therefore, Section 47 CPC will not maintainable
nothing but abuse of process of law.
10) In the circumstances, the petition under Order 6 Rule
17 CPC is no prima facie only to stall proceedings nothing but
frivolous. There is no need to amend the petition u/s 47 CPC
under the pretext that decree is in-executable and has no next to
stand. Section 47 CPC the question must arised between the
parties to the suit in which decree was passed”
11. The Lower Court has also relied on two judgments of the Hon’ble
Apex Court, which reads as follows :
2018 (6) CTC Page No.709
Mr.Justice. M.Sundaresh and Sathishkumar JJ.
Order 21 Rule 90 CPC - Execution Petition - proceedings various
applications filed by J.D with intention to delay execution in decree
- court is duty bound to protect - Decree Holder.
&
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C.R.P.(NPD).No.284 of 2021
2019 (2) MWN Civil 129
M.S.Ramesh - Justice
The suit for delivery of recovery of possession, the petition no
locus standi to raise the points - Petitioner weight for 20 years to
enjoy the fruits of the Decree - CRP - Dismissed with exemplary
costs.
12. On going through the materials on record, it is seen that the suit
has been protracted from 2002 to till date and this is an example for how a
suit can be protracted for a long period. It is almost 20 years since the suit in
O.S.No.76 of 2002 has been filed and the plaintiff who had got a decree in
her favour is still not able to enjoy the fruits of the decree. It is a clear case
where the revision petitioners claim under the settlement deed executed in
their favour. It is seen from the pleadings made in E.A.No.644 of 2011 that
when the suit in O.S.No.76 of 2002 was decreed on 23.01.2003, to defeat the
decree, the Judgment Debtor Saraswathi Ammal had executed a settlement
deed in favour of the petitioners herein as early as 23.03.2004 anticipating
the attachment of the property in execution proceedings to satisfy the decree.
The said E.A.No.644 of 2011 has been filed only in the year 2011. When it
was pending for almost 8 years, the petitioners have come out with this
E.A.No.224 of 2019 seeking amendment of provisions of law.
13. The contention of the learned counsel for the petitioners that the
amendment sought for would not create any new cause of action or make any
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C.R.P.(NPD).No.284 of 2021
change in the main petition, cannot be accepted and the same has to be
rejected.
14. This Court does not accept any of the arguments put forth by the
learned counsel for the petitioners and it is obvious that the Judgment debtor
has adopted dilatory tactics to defeat the claim of the decree holder. The E.P
petition was filed in the year 2004 and the petitioners seek for amendment of
provisions of law after 8 long years when there is no merit. The petitioners are
only trying to protract the proceedings and the Court below has rightly
dismissed the E.A.No.224 of 2019 on the ground of delay of 8 years in
seeking the amendment under Order 6 Rule 17 CPC. Hence, this Court is of
the view that the revision petition is devoid of merits and the same has to be
dismissed with costs.
15. Accordingly, this Civil Revision Petition is dismissed with costs of
Rs.2,000/- to be paid by the petitioners to Tamil Nadu Covid Relief Fund.
Consequently, connected miscellaneous petition is closed. Since the E.A is
pending for more than 10 years, the Principal Subordinate Court,
Vridhachalam, is directed to expedite and complete the entire proceedings
within a period of three months from the date of receipt of a copy of this order.
07.06.2021
raja
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD).No.284 of 2021
V.BHAVANI SUBBAROYAN.J.,
raja
Index : yes/no
Internet : yes/no
Speaking Order / Non-Speaking Order
To
The Principal Subordinate Court, Vridhachalam.
C.R.P.(NPD).No.284 of 2021
and
C.M.P.No.2624 of 2021
07.06.2021
https://www.mhc.tn.gov.in/judis/
