Madras High Court
Sarabudheen @ vs Ramadhas (Died) on 28 June, 2022
CRP(NPD)(MD)No.1239 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(NPD)(MD)No.1239 of 2022
and C.M.P.(MD)No.5081 of 2022
Sarabudheen @
Mohammed Sarabudeen ... Revision Petitioner
versus
Ramadhas (died)
R.Joseph ... Respondent
Civil Revision Petition filed under Section 115 of C.P.C. against
the fair and decreetal order dated 23.04.2022 made in E.P.No.69 of
2018 in O.S.No.227 of 2002 on the file of the Sub Court, Eraniel.
For Revision Petitioner : Mr.A.Balakrishnan
For Respondent : Mr.D.Saravanan
ORDER
The revision petitioner, who is the Judgment Debtor, filed this
Civil Revision Petition against the order of delivery passed in E.P.No.
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
69 of 2018 in O.S.No.227 of 2002 dated 23.04.2022.
2. The revision petitioner herein is the defendant in the suit in
O.S.No.227 of 2002 on the file of the learned Subordinate Judge,
Padmanabhapuram. The said suit has been filed by one Ramadhas,
vendor of the respondent herein, for specific performance and the same
was decreed by the trial Court on 23.07.2004. Aggrieved over the
same, the revision petitioner filed an Appeal Suit in A.S.No.218 of
2004 before the learned District Judge, Kanniyakumari at Nagercoil
and the same was dismissed, by Judgment and Decree dated
02.09.2006. After the dismissal of the appeal suit, a sale deed was also
executed on 16.11.2006. Against the dismissal of the appeal suit, the
revision petitioner also filed a second appeal in S.A.(MD)No.1235 of
2006 before this Court and the same was dismissed by this Court, by
Judgment and Decree dated 17.11.2016. Thereafter, an Execution
Petition in E.P.No.69 of 2018 was filed by the respondent herein in the
year 2018 and the same was ordered on 23.04.2022. Aggrieved over
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
the same, the Judgment Debtor/revision petitioner has filed this Civil
Revision Petition.
3. The learned counsel appearing for the revision
petitioner/Judgment Debtor submits that the suit schedule property is a
dwelling house of the revision petitioner and its market value is more
than Rs.1 crore. However, the plaintiff, a money lender, in order to
grab the property, created a document fixing the value of the property
as Rs.4,50,000/- and obtained the decree in favour of him. He further
submits that the sale deed was executed in favour of the decree holder
on 25.10.2006 and the sale was made absolute on 16.11.2006. As per
Article 134 of the Limitation Act, the Execution Petition ought to have
been filed within one year from the date of sale confirmation. But, the
Execution petition was filed belatedly, i.e. in the year 2018, after the
lapse of 12 years. Therefore, in lieu of Article 134 of the Limitation
Act, the Execution Petition cannot be maintained and the order of
delivery passed by the Executing Court is barred by law.
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
4. The learned counsel appearing for the respondent/Decree-
holder submits that the suit for specific performance was filed in the
year 2002 and it was decreed in the year 2004 and appeal filed by the
judgment debtor/revision petitioner was also dismissed by the
Appellate Court in the year 2006. Thereafter, the sale deed was
executed on 16.11.2006. The revision petitioner has also filed a Second
Appeal before this Court in S.A.(MD)No.1235 of 2006 and the same
was dismissed by this Court on 17.11.2016. Thereafter, the Execution
Petition was filed on 16.11.2018. If time is calculated from the date of
execution of the sale deed, the respondent is having time for filing
Execution Petition till 16.11.2018 and after the Judgment of this Court
dated 17.11.2016 passed in S.A.(MD)No.1235 of 2006, the Execution
Petition is filed well within the time. In support of his contention, he
also relied upon the Judgment of a Division Bench of this Court in the
case of N.S.Karuppanna Gounder vs. Nagammal and another
reported in 1996 II CTC 1.
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
5. This Court considered the rival submissions made.
6. In the decision of a Division Bench of this Court in
N.S.Karuppanna Gounder vs. Nagammal and another reported in
1996 II CTC 1, relied upon by the learned counsel appearing for the
respondent, it has been held as follows:
“We are unable to subscribe or affix our seal of
approval to the views expressed by Sathar Sayeed, J. in
the Judgment in Devendra v. Badrabagu, 1986 ILR (2)
Mad.72. We are of the firm view that Article 136 of the
Limitation Act should receive a fair and liberal and not a
technical construction with a view to enable the decree
holder to reap the fruits of his decree and it will not be in
consonance with the principles of just interpretation to
strain the language of the Article in favour of the
Judgment-debtor who had not paid his just dues. As
already seen, this Article is a specific article requiring all
the applications for the execution of decrees or orders,
where the decree-holder acquires a vested right under the
decree and that right out not to be taken away except
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
under a clear and unambiguous enactment. In the present
case, it is not in dispute that the order of delivery has
been passed within one year from the date when the sale
became absolute viz. on 9.11.1981. E.A.No.333 of 1982
was filed on 13.03.1982 for delivery and the delivery was
ordered in that application on 19.03.1982. The said
application was dismissed on 31.03.1983, as auction
purchaser had not assisted to effect delivery. Therefore,
the very purpose for which E.A.No.333 of 1982 was filed
(for delivery) was served with the passing of the order of
delivery and what remained thereafter was only the
ministerial act of putting into effect of the said order for
delivery. It is also to be noted that there is no period of
limitation for reminding the Court to do its ministerial act
of completing delivery of possession pursuant to the
order passed for delivery of possession. Even viewed
otherwise, that the order directing delivery of possession
required to be executed as per the law of limitation,
Article 136 of the Limitation Act is the only proper
provision to be applied because that Article applies not
only to a decree, but also to an order of Court, which is
executable as a decree. It is also not in dispute that the
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
first petition was filed in time. As observed by this Court
in Perumal vs. Ramachandra Padayachi, 1981 (1) MLJ
65 what the decree holder purchaser sought for is not an
order for delivery which ex hypothesi, he had already
obtained in the earlier application. Therefore, he had
approached the Court with the present application for
executing the earlier order for delivery passed by that
very executing Court. Therefore, Article 134 of the
Limitation Act has no application as it applies only to an
application for delivery. It does not apply when that
particular application had already been ordered and
something had to be done with that order or pursuant to
that order. In this view, Article 136 of the Limitation Act
was the proper provision to be applied, because it applied
not only to a decree but also to an order of a Court,
which was executable as an order. Since the execution
application was filed well within time, it must be
regarded as an application to execute the earlier order of
delivery duly passed by the executing court.”
7. In view of the decision cited above, there is no error in
entertaining the execution petition. Therefore, this Court is not
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
inclined to entertain this petition. With regard to the contention raised
by the learned counsel appearing for the revision petitioner that the
market value of suit property is more than Rs.1 crore, neither this Court
nor the Execution Court can go into that factual aspect.
8. Accordingly, the Civil Revision Petition is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
28.06.2022
Index : Yes / No.
Internet : Yes / No.
ogy
To
The Sub Court,
Eraniel.
https://www.mhc.tn.gov.in/judis
CRP(NPD)(MD)No.1239 of 2022
B.PUGALENDHI, J.
ogy
CRP(NPD)(MD)No.1239 of 2022
28.06.2022
https://www.mhc.tn.gov.in/judis
