Madras High Court
Pari vs Palanisamy on 22 June, 2021
S.A.(MD)No.65 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.65 of 2013
1.Pari
2.Ranjitha ... Appellants
(Appellants 1 and 2 are declared major
and the guardian is discharged vide order
dated 21.04.2021)
Vs.
1.Palanisamy
2.Rajalingam ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.27 of 2011 dated 20.11.2012
on the file of the District Court, Karur, confirming the fair and decreetal order
passed in E.A.No.189 of 2009 in E.P.No.66 of 2008 in O.S.No.466 of 2003
dated 16.08.2011 on the file of the Principal Sub Court, Karur.
For Appellants : Mr.V.Meenakshi Sundaram
For Respondents : Mr.S.Madhavan
For Mr.M.Karthikaya Venkitachalapathy
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S.A.(MD)No.65 of 2013
JUDGMENT
This second appeal arises out of a claim petition filed under Order 21
Rule 58 of Civil Procedure Code. The first respondent herein namely.,
Palanisamy filed O.S.No.466 of 2003 before the Sub Court, Karur, against the
second respondent herein namely., Rajalingam. The suit was filed for
recovering a sum of Rs.2,68,290/- with interest. The second respondent herein
entered appearance but later remained ex-parte. The trial court by judgment
and decree dated 04.02.2005 decreed the suit as prayed for. The decree holder
filed E.P.No.66 of 2008 for executing the decree. The judgment
debtor/Rajalingam remained ex-parte in the execution proceedings also. The
decree holder sought to bring as many as six items of property standing in the
name of the judgment debtor to sale. In the execution proceedings, the
appellants herein filed E.A.No.189 of 2009 claiming that they are having 1/3rd
share in item Nos.1 and 5. They sought raising of attachment in respect of their
shares. The decree-holder filed his counter opposing the claim. Enquiry was
conducted. Vide order dated 16.08.2011, the executing court dismissed the
claim petition. Challenging the same, the appellants herein filed A.S.No.27 of
2011 before the District Court, Karur. By judgment and decree dated
20.11.2012, the first appellate court dismissed the appeal. Questioning the
same, this second appeal came to be filed.
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S.A.(MD)No.65 of 2013
2.The second appeal was admitted after formulating the substantial
questions of law. The appellants are none other than the children and wife of
the judgment-debtor. The learned counsel for the appellants submitted that the
decree holder can graciously concede item No.5 and remain satisfied with the
remaining five items. The case was adjourned to enable the learned counsel for
the decree-holder to obtain instructions. Today, the learned counsel for the
decree holder informed the Court that the decree holder would concede the
claim of the appellants as regards item No.5 and will execute the decree only
against the remaining items. The appellants' also give up their claims as
regards item No.1 which is also subject matter of this second appeal. The
concessions made by the parties on either side through their respective counsel
are placed on record. In view of the compromise arrived at between the parties,
it is not necessary for this Court to consider the substantial questions of law
that were originally framed for determination.
3.Recording the submissions of the learned counsel on either side, the
impugned orders which have the force of decree are modified accordingly.
The claim made by the appellants in respect of item No.5 is sustained. The
decree-holder will not proceed against item No.5. The decree-holder is at
liberty to proceed against the remaining five items only. The appellants
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S.A.(MD)No.65 of 2013
through their counsel give an undertaking that they would respect the rights of
the decree-holder to proceed against the other items. It is seen that the E.P is
of the year 2008. The Hon'ble Apex Court recently has mandated that
execution proceedings will have to be fast-tracked. Therefore, the executing
court is directed to conclude the execution proceedings within a period of six
months from the date of resumption of regular functioning. This second appeal
is disposed of accordingly.
4.At this stage, the learned counsel on either side informed me that there
is no uniform practice being adopted by all the Courts in Tamil Nadu in the
matter of entertaining challenge to orders passed under Order 21 Rule 58 of
Civil Procedure Code. While some of the first appellate courts treat it as
regular appeal under Section 96 of Civil Procedure Code, other courts insist
that the aggrieved party should file only a civil miscellaneous appeal. A
learned Judge of this Court in the decision reported in (1988) 2 L.W. 45
(Mrs.Vasanthi v. K.Karuppanna Gounder and Others) had held that against an
order passed under Order 21 Rule 58 CPC, only a Civil Miscellaneous Appeal
is maintainable and no regular appeal is contemplated. This decision was not
followed by the Division Bench of the Kerala High Court in Anto Mamkoottam
v. Peruvanthanam Service Co-operative Bank (1996 (2) KLT 962). It was held
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S.A.(MD)No.65 of 2013
therein that such orders are appealable under Section 96 of CPC as they are
deemed decrees. When in Sudhir V.Joshi vs. E.Kanniappan (1997) 2 L.W. 660
both the decisions were cited, without seeking reference to larger Bench, the
learned Judge followed Vasanthi decision. A Full Bench of the Andhra Pradesh
High Court struck a contra note in Gurram Seetharam Reddy vs. Gunti Yashoda
(AIR 2005 AP 95) that regular appeal under Section 96 CPC alone is
maintainable and not a miscellaneous appeal under Section 104 r/w. Order 43
Rule 1 of CPC. This Full Bench decision found favour with Punjab and
Haryana High Court in Shamsher Singh vs. Zile Ram [2007 SCC Online P&H
1024]. In the case on hand, only a regular first appeal was filed under Section
96 of CPC. When two learned Judges of this Court have taken a view that a
Civil Miscellaneous Appeal alone is maintainable, I wonder as to how the first
appellate court permitted filing a regular appeal. I also take judicial notice of
the fact that there is no uniform practice being followed. I respectfully second
the view taken by the Division Bench of the Kerala High Court and the Full
Bench of the Andhra High Court. I make it clear that this is only a passing
statement. I am conscious that if I disagree with the view taken in Vasanthi and
Sudhir V.Joshi, I have to direct the Registry to place the papers before My Lord
The Hon'ble Chief Justice to consider constituting a Division Bench. I am also
aware of the desirability of having a uniform practice throughout the State.
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S.A.(MD)No.65 of 2013
But, if I seek a reference, the case on hand will have to be kept pending. When
the parties have buried the hatchet, it is better to give a quietus then and there.
Law can be settled on another occasion. No costs.
22.06.2021
Index : Yes / No
Internet : Yes/ No
skm
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The District Judge, Karur.
2.The Principal Sub Judge, Karur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.65 of 2013
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.65 of 2013
22.06.2021
https://www.mhc.tn.gov.in/judis/
