Madras High Court
Malliga ... Revision vs T.Thangavel on 2 November, 2021
C.R.P. (NPD) No.3012 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2021
CORAM :
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P. (NPD) No.3012 of 2019
and
C.M.P.No.19426 of 2019
Malliga ... Revision Petitioner
Vs.
T.Thangavel ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, against the Fair and Decreetal order in E.P.No.24 of 2018
in O.S.No.269 of 1999 dated 16.08.2019 on the file of the Subordinate
Court, Kangayam, Tiruppur District.
For Petitioner : Mr.C.Prakasam
For Respondent : Mr.K.Govi Ganesan
ORDER
(Through Video Conferencing)
This Civil Revision Petition is filed challenging the order passed in
E.P.No.24 of 2018 in O.S.No.269 of 1999, dated 16.08.2019, on the file of
the Subordinate Court, Kangayam, Tiruppur District.
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C.R.P. (NPD) No.3012 of 2019
2.The revision petitioner herein is the defendant in the suit,
O.S.No.269 of 1999, filed by the respondent/plaintiff for the relief of
specific performance, directing the defendant to execute the sale deed as per
the alleged sale agreement, on the file of the Sub-Court, Dharapuram,
Tiruppur District. The defendant remained ex parte and an ex parte decree
was passed on 28.03.2001. Thereafter, to execute the decree, the plaintiff
filed E.P.No.94 of 2010 on the file of the Sub-Court, Dharapuram, which
was subsequently transferred to the file of Sub-Court, Kangayam, and
renumbered as E.P.No.24 of 2018. In that Execution proceedings, the
plaintiff prayed for delivery of possession of the property. In E.P.No.169 of
2003, the plaintiff got execution of sale deed and after that, he filed the said
Execution Petition for delivery of possession. In that application, the son of
the defendant filed a claim petition in E.A.No.114 of 2012 and on hearing
both sides, the Executing Court, removing the 1/4th share of the claimant in
the two-tier house, ordered delivery for the remaining portion on
16.08.2019. Aggrieved by that order, the Judgment Debtor/defendant
preferred this Revision.
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C.R.P. (NPD) No.3012 of 2019
3.The revision petitioner contended that, as an illiterate woman, no
notice was properly served on her and only as a surety for the money
transaction, the alleged sale agreement came into force. Though there is
valid defence to defend her claim, no proper notice was served on her and
she remained ex parte. She is ready to contest her claim before the trial
Court and pointed out that the order passed by the Executing Court is not
maintainable in law for the reason that there was no decree for delivery of
possession.
4.But, at the time of the arguments, the learned counsel for the
respondent/plaintiff would submit that the defendant purposely evaded the
Court summons and remained ex parte. Apart from that, her son filed the
claim application, which proves that she is having the knowledge about the
entire suit proceedings, but to drag on the proceedings, she filed this
fictitious Revision and prayed to dismiss the same as there is no merit.
5.A perusal of the entire materials reveals that, in the suit as well as
the execution proceedings, the defendant remained ex parte. As per the
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C.R.P. (NPD) No.3012 of 2019
contention of the revision petitioner, no notice was served on her properly.
Furthermore, as per the submission made by the learned counsel for the
respondent, property was delivered as per the decree, on 09.09.2021. But,
as rightly pointed out by the learned counsel for the revision petitioner, this
Civil Revision Petition was taken on file on 06.09.2019 and notice was also
ordered to the respondent/plaintiff. On 25.11.2019, this Court granted
extension of interim orders until further orders. Therefore, as on date, there
is a stay of the Execution Proceedings, but as per the submission made by
the learned counsel for the respondent, property was delivered on
09.09.2021. In spite of the stay of further proceedings, the Court below
ordered for delivery of possession, which is unsustainable.
6.Furthermore, a decree to execute the sale deed alone was granted in
favour of the plaintiff and there is no prayer in the plaint with regard to the
consequential relief of delivery of possession from the defendant and there
was no such relief for delivery of possession granted in favour of the
plaintiff. When there is no decree for delivery of possession, the Executing
Court should not have passed the order for delivery of possession.
Therefore, the entire Execution Proceedings in E.P.No.24 of 2018 is
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C.R.P. (NPD) No.3012 of 2019
vitiated with abuse in process of law. Therefore, the said proceedings is
liable to be set aside, accordingly, delivery of possession ordered by the
Executing Court is set aside. The revision petitioner is directed to approach
the right forum to get appropriate relief.
Accordingly, this Civil Revision Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
02.11.2021
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
1.The Sub-Judge,
Kangayam,
Tiruppur District.
2.The Sub-Judge,
Dharapuram,
Tiruppur District.
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C.R.P. (NPD) No.3012 of 2019
T.V.THAMILSELVI, J.
mkn
C.R.P. (NPD) No.3012 of 2019
02.11.2021
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