Madras High Court
Antoinette Beaumont vs Ritha Vincent on 10 January, 2022
C.R.P.(NPD)No.2726 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.2726 of 2021
and C.M.P.No.19947 of 2021
Antoinette Beaumont .. Petitioner
Vs.
1.Ritha Vincent
2.Rakkini @ Muniammal .. Respondents
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, against the fair and decretal order dated 30.09.2010
made in E.P.No.21 of 2007 in O.S.No.514 of 1985 on the file of the
Principal Sub Court, Puducherry.
For Petitioner : Mr.R.Agilesh
For R1 : Mr.K.Sukumaran
For R2 : Mr.S.Sudarshan
for Mr.S.Subramanian
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C.R.P.(NPD)No.2726 of 2021
ORDER
(The matter is heard through “Video-conferencing”)
Civil Revision Petition is filed against the fair and decretal order
dated 30.09.2010 made in E.P.No.21 of 2007 in O.S.No.514 of 1985 on
the file of the Principal Sub Court, Puducherry.
2.The petitioner is the legal representative of judgment debtor in
O.S.No.514 of 1985 on the file of the Principal Sub Court, Puducherry
and 3rd respondent in E.P.No.21 of 2007. The 1st respondent, who is the
decree holder/petitioner in E.P. filed the said suit against one Pauline
Bombo, the 1st defendant and 2nd respondent herein for specific
performance of agreement of sale. The said suit was decreed only against
Pauline Bombo, the 1st defendant to execute the sale deed in favour of 1st
respondent on depositing the balance sale consideration of Rs.15,000/-
into the Court within four months from the date of decree, execute the
sale deed as per Ex.A2 in respect of the suit property, the 2 nd respondent
is entitled to receive the sum of Rs.15,000/- deposited into the Court and
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C.R.P.(NPD)No.2726 of 2021
the balance amount of Rs.15,000/- from the 1st defendant with interest
and setting aside the sale deed dated 20.01.1986 as null and void. Against
the judgment passed in the suit, the First Appeal in A.S.No.133 of 1990
was filed by the defendants and the same was allowed. The 1 st respondent
filed Second Appeal No.1450 of 1993 and the same was allowed
confirming the decree of the trial Court by the judgment dated
14.06.2006. The 1st respondent filed E.P.No.21 of 2007 against the
defendants for a direction to them to execute the sale deed in respect of
the suit property and in default, the Court to execute the sale deed in
favour of the 1st respondent. Even after entering appearance, the 1st
defendant/1st respondent in E.P. was set exparte on 04.04.2008. The 1 st
defendant/1st respondent in E.P. filed an application in E.A.No.Nil of
2008 under Section XXI Rule 106 read with Section 151 of C.P.C., to set
aside the exparte order dated 04.04.2008 made in E.P.No.21 of 2007
passed against her. The 1st defendant also filed counter statement in the
E.P. along with said E.A. According to the 1st defendant/1st respondent in
E.P., when E.P. was posted for filing counter statement by the 1 st
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C.R.P.(NPD)No.2726 of 2021
respondent in E.P., she did not file counter statement as one Antionette
Beaumont/third party, the petitioner herein filed application under Section
151 of C.P.C. to stay all further proceedings of E.P.No.21 of 2007. The
1st defendant stated that she was aged 82 years, she could not come out
from her house due to her old age from January 2008 onwards, exparte
order was passed on 04.04.2008 and prayed for setting aside the exparte
order.
2(i). Pending E.P., the 1st defendant Pauline Bombo, who is 1st
respondent in E.P. died. The petitioner, legal representative of the 1 st
defendant was brought on record as 3rd respondent in the E.P.
3.The learned Judge on 30.09.2010 passed the following order:
“Sale deed executed. Sale deed handed over to the petitioner. E.P. is
terminated.”
4.Against the said fair and decretal order dated 30.09.2010 made
in E.P.No.21 of 2007 in O.S.No.514 of 1985, the petitioner has come out
with the present Civil Revision Petition.
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C.R.P.(NPD)No.2726 of 2021
5.The learned counsel appearing for the petitioner contended that
the application filed by the 1st defendant/1st respondent in E.P. on
10.04.2008 was not numbered and taken up for hearing. It was kept un-
numbered for more than two years. Without considering the said
application and without giving an opportunity to the 1st respondent in
E.P., the learned Judge executed the sale deed and terminated the E.P. The
learned Judge did not comply with the provisions of Order XXI Rule 34
of C.P.C. for execution of the sale deed, erroneously executed sale deed in
favour of the 1st respondent herein, terminated E.P. and prayed to set
aside the order in E.P. and for allowing the C.R.P.
6.The learned counsel appearing for the 1st respondent contended
that in spite of opportunity given to the 1 st defendant, she did not file
counter statement setting out her objections in the E.P. The reason given
by the 1st defendant that in view of application filed by the petitioner
herein to stay of E.P. proceedings, she has not filed counter statement is
not acceptable. In view of non-filing counter statement, the learned Judge
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C.R.P.(NPD)No.2726 of 2021
set the 1st respondent in E.P. exparte and after complying the provisions
of Order XXI Rule 34 of C.P.C., executed the sale deed and terminated
the E.P. There is no error in the said order of the learned Judge and
prayed for dismissal of the Civil Revision Petition.
7.Heard the learned counsel appearing for the petitioner as well as
the learned counsel appearing for the 1st respondent and 2nd respondent
and perused the entire materials on record.
8.From the materials on record, it is seen that decree holder has
filed E.P. for a direction to the defendants to execute the sale deed in
respect of schedule mentioned property and in default, the Court can
execute the sale deed in her favour. When the judgment debtor fails to
execute the sale deed as per the decree, the Court can execute the sale
deed after complying with the provisions of Order XXI Rule 34 of C.P.C.
Order XXI Rule 34, Sub-Rules (1) to (4) is relevant to decide the issue in
the C.R.P. and the same reads as follows:
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C.R.P.(NPD)No.2726 of 2021
Order XXI Rule 34 of C.P.C.
“34.Decree for execution of document, or
endorsement of negotiable instrument—
(1) Where a decree is for the execution of a document or
for the endorsement of a negotiable instrument and the
judgment-debtor neglects or refuses to obey the decree, the
decree-holder may prepare a draft of the document or
endorsement in accordance with the terms of the decree and
deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be
served on the judgment-debtor together with a notice requiring
his objections (if any) to be made within such time as the Court
fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his
objections shall be stated in writing within such time, and the
Court shall make such order approving or altering the draft, as
it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of
the draft with such alterations (if any) as the Court may have
directed upon the proper stamp-paper if a stamp is required by
the law for the time being in force; and the Judge or such
officer as may be appointed in this behalf shall execute the
document so delivered.”
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C.R.P.(NPD)No.2726 of 2021
As per Sub-Rule (1), the decree holder has to file draft sale deed along
with E.P. As per Sub-Rule (2), the Court has to serve the draft sale deed
on the judgment debtor along with notice requiring his objections, if any
within the time that may be fixed by the Court. As per Sub-Rule (3), If
the judgment debtor objects to any averments in the draft sale deed, he
has to submit the same in writing. When such objections are made in
writing, the Court has to consider the same and pass orders either
approving the draft sale deed or as such alter the draft sale deed as the
Court thinks fit. Only after complying with the provisions of Sub-Rule (2)
and (3) of Rule 34 of Order XXI of C.P.C., the Court can proceed to
execute the sale deed.
9.From the materials placed before this Court, it is seen that there
is nothing on record to show that draft sale deed was served on the
judgment debtor/1st respondent in E.P. or petitioner, who was brought on
record as the legal representative of judgment debtor. It is not the case of
the 1st respondent also that draft sale deed was served on the 1 st
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C.R.P.(NPD)No.2726 of 2021
respondent/judgment debtor in the E.P. or the petitioner herein. Without
complying with the provisions of Sub-Rule (2) and (3) of Rule 34 of
Order XXI of C.P.C., the learned Judge erroneously executed the sale
deed in favour of the 1st respondent herein. Further, when the 1st
defendant/judgment debtor filed E.A. on 10.04.2008 to set aside the
exparte order passed against her, the Court did not either number the
application for hearing or reject the same un-numbered. Without doing
so, the said E.A. was kept pending for more than two years without being
numbered. After filing said application, by the impugned order dated
30.09.2010 made in E.P.No.21 of 2007 in O.S.No.514 of 1985, the
learned Judge executed the sale deed in favour of the 1 st respondent
herein, handed over the sale deed and terminated the E.P. without
complying with the provisions of Sub-Rule (2) and (3) of Rule 34 of
Order XXI of C.P.C., the learned Judge has committed irregularity and
illegality. Therefore, the said order of the learned Judge made in
E.P.No.21 of 2007 in O.S.No.514 of 1985 is liable to be set aside and is
hereby set aside. The learned Judge is directed to take E.P. on file,
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C.R.P.(NPD)No.2726 of 2021
consider the application filed by the judgment debtor/1st respondent in
E.P. and pass orders in E.P. after complying with the provisions of Order
XXI Rule 34 Sub-Rule (2) and (3) of C.P.C. The learned Judge is directed
to dispose of E.P. as expeditiously as possible in any event, within six
months from the date of receipt of a copy of this order.
10.With the above directions, the Civil Revision Petition stands
allowed. No costs. Consequently, connected Miscellaneous Petition is
closed.
10.01.2022
Index : Yes/No [1/2]
Internet: Yes/No
Note:The Registry is directed to send back
the original documents filed by the
petitioner to the trial Court forthwith.
kj
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2726 of 2021
V.M.VELUMANI,J.
Kj
To
The Principal Subordinate Judge
Puducherry.
C.R.P.(NPD)No.2726 of 2021
and C.M.P.No.19947 of 2021
10.01.2022
[1/2]
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