Madras High Court
C.R.Mohan Dass vs Palanathal @ Palaniammal on 27 June, 2022
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.06.2022
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
C.R.Mohan Dass ... Petitioner /
Judgment Debtor
versus
1.Palanathal @ Palaniammal ... Respondent /
Decree Holder
2.Rukumani
3.Bakkiyam
4.Gokulammal ... Respondents /
Judgment Debtors
PRAYER: Civil Revision Petition has been filed under Section 115 of the
Code of Civil Procedure, against the fair and decreetal order dated
10.12.2021 passed in E.P.No.220 of 2007 in O.S.No.680 of 1985 on the file
of the learned II Additional Subordinate Judge, Coimbatore and allow this
petition.
For Petitioner : Mr.C.R.Prasanan
For Respondents : Mr.S.Saravanan
for M/s.Sarvabhauman Associates
1/9
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
ORDER
This Civil Revision Petition has been preferred challenging the
order of the learned II Additional Subordinate Judge, Coimbatore, dated
10.12.2021 made in E.P.No.220 of 2007 in O.S.No.680 of 1985.
2. The revision petitioner and the respondents 2 to 4 are the
judgment debtors, who suffered the decree in O.S.No.680 of 1985. The
1st respondent decree holder has filed the suit in O.S.No.680 of 1985 for the
relief of specific performance. The suit was decreed on 06.10.1989 in her
favour. Thereafter, an appeal in A.S.No.1149 of 1990 was preferred before
the trial Court and the same was dismissed on 22.03.2006 by granting a time
of 8 weeks to pay the balance sale consideration. The S.L.P. filed by the
defendants also dismissed on 27.11.2009.
3. Subsequent to the finality of the decree, execution
proceedings were initiated in E.P.No.220 of 2007 and in which the learned
Executing Judge passed an order on 10.12.2021 by giving direction to
execute the Sale Deed. Aggrieved over that, the petitioner has filed this
Civil Revision Petition.
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
4. The learned counsel for the petitioner submitted that in
compliance of the direction of the Court, the decree holder has not deposited
the amount within time; and in view of fact that the revision petitioner has
filed a petition under Section 28 of the Specific Relief Act to rescend the
decree; if the Executing Court passes an order to execute the Sale Deed
before the disposal of the said petition, the petition filed under Section 28 of
the Specific Relief Act would become infructuous and hence, the order
should be set aside.
5. On perusal of the judgment passed on 22.03.2006 in
A.S.No.1149 of 1990, the first appellate Court has held as under;
“14. There is no merit in the appeal and the same is dismissed. No costs.
The time for deposit of balance of sale consideration by the plaintiff is
eight weeks from today and the sale deed is to be executed within four
weeks from the date of deposit.”
6. Even before the said order, the decree holder has
deposited the balance sale consideration of Rs.1,29,000/-. In fact, even on
the day when the judgment was made in the first appeal i.e. on 22.03.2006
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
the balance sale consideration of Rs.1,29,000/- was lying in the trial Court
deposit. The contention of the learned counsel for the petitioner is that by
virtue of the permission granted by the High Court, the judgment debtors
had withdrawn sale amount deposited in the Court and hence, it cannot be
taken that the decree holder has complied the condition as directed in the
first appeal. The learned counsel for the petitioner drew the attention of this
Court to the following judgments;
1. P.R.YELUMALAI vs. N.M.RAVI reported in (2015) 9 SCC 52
2. M.ELUMALAI vs. DEVI @ PERUNDEVI reported in CDJ 1991
MHC 478
7. In the judgment of the Hon'ble Supreme Court in
P.R.YELUMALAI vs. N.M.RAVI reported in (2015) 9 SCC 52, it is held
that the non-compliance of the condition would render the decree as nonest.
There is no quarrel on the point that the non-payment of the balance sale
consideration in terms of the conditional decree would make the decree
holder lose the benefits of the decree.
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C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
8. In M.ELUMALAI vs. DEVI @ PERUNDEVI reported
in CDJ 1991 MHC 478, this Court has held that the judgment debtor is
entitled to the interest on the amount deposited in the Court. But the
judgment has to be read in the context of its own facts.
9. Here, it is a case where the decree holder had deposited
the balance sale consideration even before the direction of the Court as early
as on 03.11.1989. The interest accrued until in the year 1995 has been
withdrawn by the judgment debtors only in accordance with the order of the
Court and it did not form part of the balance sale consideration. Even if it is
taken that the interest amount on the balance sale consideration accrued till
1995 was to be withdrawn by the judgment debtors, this fact has to be
contested before the High Court, which alone permitted the decree holder to
withdraw the interest.
10. It is to be noted in the judgment of the first appeal dated
22.03.2006, the condition is to the effect that the plaintiff should pay the
balance sale consideration within 8 weeks. The only would mean that the
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
balance sale consideration of Rs.1,29,000/- should alone be paid. There is
no dispute as to the question of the sale consideration for which the Sale
Agreement was entered into and in fact the matter was set at rest by virtue
of the judgment of the first appeal. The learned Executing Judge has
rendered a clear finding as to the compliance of the condition and proceeded
to pass an order to execute the Sale Deed.
11. It is pertinent to note that even the S.L.P. filed by the
judgment debtors was also dismissed on 27.11.2009. Having contested the
suit for several years and got the decree which attained finality, the Courts
cannot deprive the decree holder and stand in the way of executing the
decree, just because the petitioner had filed a petition under Section 28 of
the Specific Relief Act with false averments. The petitioner has not obtained
any order of stay for operation of the decree from any Courts in view of the
petition filed by him under Section 28 of Specific Relief Act. The records
would show that the petition in I.A.No.947 of 2011 was filed before the I
Additional Subordinate Court, Coimbatore under Section 28 of Specific
Relief Act way back in the year 2011. The Execution Proceedings was filed
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
in the year 2007 and S.L.P. filed before the Hon'ble Supreme Court was also
dismissed on 27.11.2009. At the risk of repetition, it is also made clear that
the decree holder has deposited the balance sale consideration even before
the direction of the Court and hence, there is no reason to file a petition
under Section 28 of Specific Relief Act.
12. In the backdrop of the above facts, it can be only seen as
an attempt to dilate the execution proceedings and prevent the plaintiff from
reaping the fruits of the decree, which she obtained in the year 1989. The
Execution Court is expected to execute the decree in its true letter and spirit.
When the decree is not stayed by any order of the Court, nothing will
prevent the Executing Court to pass orders in terms of executing the decree.
Hence, I find no factual or legal infirmity in the order passed by the learned
II Additional Subordinate Judge, Coimbatore.
13. Accordingly, this Civil Revision Petition is dismissed
and the order dated 10.12.2021 passed by the learned II Additional
Subordinate Judge, Coimbatore, in E.P.No.220 of 2007 in O.S.No.680 of
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
1985 is hereby confirmed. Consequently, connected Miscellaneous Petition
is closed. However, there is no order as to costs.
27.06.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
To
The II Additional Subordinate Judge,
Coimbatore.
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
R.N.MANJULA, J.
sri
C.R.P. (NPD) No.733 of 2022
and C.M.P. No.3680 of 2022
27.06.2022
https://www.mhc.tn.gov.in/judis
