Madras High Court
Muthu Kumarasamy vs Saraswathi on 3 September, 2021
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
Muthu Kumarasamy ... Petitioner /
Third Party
versus
1.Saraswathi ... Respondent /
Decree Holder
2.Gunasekaran ... Respondent /
Judgment Debtor
PRAYER: Civil Revision Petition has been filed under Section 115 of the
Civil Procedure Code, to set aside the docket order dated 23.01.2020 passed
in unnumbered E.A.SR.No.546 of 2020 in E.P.No.06 of 2014 in
R.C.O.P.No.3 of 2000 and direct the learned District Munsif, Jayankondam
to number the unnumbered E.A.SR.No.546 of 2020 and allow the Civil
Revision Petition.
For Petitioner : M/s.M.Senthil Vadivu
1/6
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
ORDER
This Civil Revision Petition is filed against the docket order
dated 23.01.2020 passed in unnumbered E.A.SR.No.546 of 2020 in
E.P.No.06 of 2014 in R.C.O.P.No.3 of 2000 and direct the learned District
Munsif, Jayankondam, to number the unnumbered E.A.SR.No.546 of 2020.
2. The learned counsel for the petitioner submitted that, the
first respondent filed the Eviction Petition against the second respondent in
R.C.O.P.No.3 of 2000 on the ground of wilful default and other grounds. The
eviction was ordered on the ground of wilful default. E.P.No.6 of 2014 is
pending for executing the decreetal order. Meanwhile, the petitioner filed the
aforesaid unnumbered E.A.SR.No.546 of 2020 under Order 21 Rule 58 of
C.P.C. for the relief of possession in respect of the petition mentioned
property or in the alternative defer, the delivery of the property until the
disposal of the suit in O.S.No.200 of 2017 on the file of the Sub Court,
Jayankondam.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
3. The case alleged in this petition is that, the petitioner had
entered into a Sale Agreement with the second respondent in respect of the
petition mentioned property on 02.10.2012 and paid a sum of Rs.2,50,000/-
as a sale consideration on the same date. The suit in O.S.No.200 of 2017 was
filed on the file of the Sub Court, Jayankondam, for the relief of specific
performance in pursuance of the Sale Agreement dated 02.10.2012. When the
suit is pending, if the property is delivered to the first respondent, the
petitioner will be penalised, therefore, the petition under Order 21 Rule 58 of
C.P.C. was filed. This petition was returned by the learned trial Judge on the
ground that the property was not attached and therefore, the petition is
returned. Against the said return, the present Civil Revision Petition is
preferred.
4. The learned counsel for the petitioner submitted that, the
return of the petition on the ground that, there is no attachment of the
property, is not legal. Therefore, the learned trial Judge may be directed to
number the unnumbered Interlocutory Application and proceed to dispose of
the matter. Order 21 Rule 58 of C.P.C. reads that "where any claim is
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
preferred to, or any objection is made to the attachment of, any property
attached in execution of a decree on the ground that such property is not
liable to such attachment, the Court shall proceed to adjudicate upon the
claim or objection in accordance with the provisions herein contained".
Thus, it is made clear from this provision that, the attachment of the property
is not a precondition for entertaining the petition under Order 21 Rule 58 of
C.P.C. Whenever any claim is preferred to, with regard to the property
concerned in execution, the party claiming that the property, is not liable for
attachment, can entertain the application.
5. In such view of the matter, this Court finds that the return
made by the learned trial Judge that, the petition is returned for the reason
that the property was not attached, is not correct. Therefore, the learned
District Munsif, Jayankondam, is directed to proceed with the petition on the
basis of materials filed in support of the petition and take decision to number
the petition, if the petition has substance and legally maintainable. Otherwise,
the learned District Munsif, Jayankondam, may reject the petition, if he finds
that this petition has no substance and not maintainable in law.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
6. Accordingly, this Civil Revision Petition is disposed of.
Consequently, connected Miscellaneous Petition is closed. However, there is
no order as to costs.
03.09.2021
Speaking order / Non-speaking order
Index : Yes / No
sri
To
The District Munsif, Jayankondam.
https://www.mhc.tn.gov.in/judis/
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
G.CHANDRASEKHARAN, J.
psa / sri
C.R.P. (NPD) No.1790 of 2021
and C.M.P. No.13911 of 2021
03.09.2021
https://www.mhc.tn.gov.in/judis/
