Madras High Court
Eswaran vs Syed Mohammed on 17 November, 2021
C.R.P.(MD) No.1327 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.11.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(MD)No.1327 of 2019
and
C.M.P(MD) No.7227 of 2019
1.Eswaran
2.K.Dhanalakshmi ... Petitioners
Vs.
1.Syed Mohammed
2.Official Liquidator /Agriculture Officer,
Vadamadurai Block Agro Engineering
and Services Co-operative Centre,
Vadamadurai,
Vedsanthur Taluk,
Dindigul District.
3.K.Nallasamy ... Respondents
PRAYER:- Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the return order dated 18.12.2018 made
in unnumbered E.A.No. of 2018 in E.A.No.23 of 2018 in E.P.No.202
of 2005 in O.S.No.1220 of 1995 on the file of the Additional District
Munsif, Dindigul and number the same.
_________
Page 1 of 8
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
For Petitioner : Mr.S.Rajasekar
For R-3 : Mr.R.R.Kannan
ORDER
The judgment debtor filed a petition under Section 47 of the Code
of Civil Procedure in the execution proceeding filed by the decree
holder/plaintiff.
2.The facts which is the run up to the filing of the above civil
revision petition are as follows:-
(i) The decree holder/plaintiff has filed a suit in O.S.No.1220 of
1995 against the second respondent herein for recovery of money. The
said suit was decreed by the judgment and decree dated 19.03.1999 on
the file of the Additional District Munsif, Madurai, in and by which the
second respondent herein was directed to pay a sum of Rs.28,298.02/-
together with interest at 18%. The judgement was an ex parte one.
Thereafter, since the payments were not forthcoming, the plaintiff had
initiated the execution proceedings against the defendant Society by
attaching the property belonging to the defendant Society and bringing it
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
to sale. It appears that the suit property was attached and brought to sale
in the Court auction conducted in the proceedings in E.P.No.202 of 2005
on the file of the Additional District Munsit, Dingul. The third
respondent herein was the successful bidder, he having quoted the
highest price of Rs.8,65,000/-, the sale was also confirmed in his favour
on 17.03.2017. Thereafter, the sale certificate dated 15.03.2018 was
issued to the third respondent herein. While so, after the sale was
confirmed under the sale certificate, the petitioners herein who are third
parties to the proceedings have filed E.A.SR.No.7338 of 2021 on
18.12.2018. The said petition was returned on 18.12.2018 by the learned
Principal District Munsif, Vedasandur, stating as to how the petition was
maintainable, since the petitioners were not parties to the proceeding nor
representatives of the parties therein. Immediately, the petitioners have
taken this order returning the petition on revision to this Court.
(ii) The petitioners in their Section 47 application has contented
that they are employees of the defendant society. The employees were
not paid their salary and hence, had moved the Writ Petition before the
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
Madurai Bench of Madras High Court in W.P(MD) No.9866 of 2006
challenging the property of the defendant Society being brought to
auction. However, the property was auctioned and the amounts were
settled towards the Employees Provident Fund and no amounts were paid
to the petitioners towards their arrears of salary. In fact, the husband of
the second petitioner had obtained an award from the Labour Court
against the defendant Society directing them to pay a sum of Rs.
3,87,060/- towards his arrears of salary. The petitioners have approached
this Court in its writ jurisdiction for various orders.
(iii) The petitioners would contend that a collusive suit has been
filed and the property of the society attached and brought to sale. The
petitioners would further contend that the property was worth much more
than the rate at which it has been sold and therefore, they had come up
with this petition under Section 47 of the Code of Civil Procedure
seeking a direction that the arrears of salary be paid to the petitioners
and to cancel the confirmation of sale in respect of the petition schedule
property.
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
(iv) The learned Principal District Munsif, Vedasandur, has
rightly returned the petition asking the petitioners to explain as to how
the petition was maintainable, particularly when the petitioners were not
parties to the proceedings nor the representatives of the parties to the suit
proceedings.
3.Mr.S.Rajasekar, learned counsel appearing on behalf of the
petitioners would reiterate the contents in their petition by stating that the
third respondent was bent upon knocking away the property of the
Society for a very low price. He would submit that if the property is sold
for a higher price, then not only would the dues of the plaintiffs be
settled but the arrears of salary would also be paid to the petitioners. The
learned Principal District Munsif therefore may be directed to number the
application without insisting on the petitioners showing proof that they
were parties to the proceedings.
4.Mr.R.R.Kannan, learned counsel appearing on behalf of the third
respondent on the other hand would contend that the property had been
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
attached and the sale certificate issued to the third respondent much
before the filing of Section 47 application. That apart the defendant
Society has not challenged the decree passed in O.S.No.1220 of 1995
and therefore, the decree had attained finality. The Executing Court was
only obliged to execute the decree and cannot re-write the decree.
5.Heard the learned counsel for the petitioners and the learned
counsel for the third respondent and perused the records.
6.Admittedly, the petitioners are not parties to the execution
proceedings and they have not obtained any decree against the defendant
Society. The instant Execution Proceedings had been initiated to execute
the decree that the first respondent had obtained in the suit in O.S.No.
1220 of 1995. The first respondent had obtained the decree as early as
on 19.03.1999 and the property was attached and sold only in the year
2018. For all these years, the defendant Society has not challenged the
judgment and decree and neither have the petitioners herein moved any
earlier application. The property which was attached by order of the
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
Court has been sold to the third respondent as early as on 15.03.2018.
The impugned petition has been filed on 18.12.2018.
7.The only ground urged by the petitioners is that they have to
recover their arrears of salary only from out of the immovable properties
belonging to the defendant Society. Admittedly, the petitioners do not
have any decree for claiming the arrears of salary and further the arrears
have not been quantified. The learned Principal District Munsif,
Vedasandur, has rightly returned the petition questioning the
maintainability of the very petition.
8.In these circumstances, I do not find any reason to interfere with
the order dated 18.12.2018 where the plaint has been returned on the
ground that the petitioners are neither parties to the proceedings nor
representatives of the parties to the proceedings. Accordingly, this Civil
Revision Petition is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
17.11.2021
Index :Yes/No
Internet:Yes/No
_________
https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.1327 of 2019
P.T.ASHA, J.
cp
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:-
The Additional District Munsif,
Dindigul.
C.R.P(MD)No.1327 of 2019
17.11.2021
_________
https://www.mhc.tn.gov.in/judis
