Madras High Court
Vairavan Chettiar ... Respondent ... vs A.R.Ramasamy Chettiar ... ... on 1 March, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)Nos.1801 & 1863 of 2012
C.R.P.(MD)No.1801 of 2012
Vairavan Chettiar ... Respondent / 3rd Defendant /
Judgment Debtor /
Revision Petitioner
Vs.
A.R.Ramasamy Chettiar ... Petitioner / Plaintiff /
Decree Holder / Respondent
Prayer: Civil Revision petition filed under Section 115 of
C.P.C., against the order and decretal order dated 03.08.2012 in
E.P.No.10 of 2007 in O.S.No.20 of 1997 on the file of the District
Munsif cum Judicial Magistrate, Kodaikanal.
For Petitioner : Ms.AL.Ganthimathi
For Respondent : Mr.V.R.Shanmuganathan
***
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C.R.P.(MD)No.1863 of 2012
A.R.Ramasamy ... Petitioner / Petitioner /
Plaintiff / Decree Holder
Vs.
Vairavan Chettiar ... Respondent / Respondent /
3rd Defendant / Judgment Debtor
Prayer: Civil Revision petition filed under Section 115 of
C.P.C., to call for and set aside the fair and decretal order dated
03.08.2012 in E.P.No.10 of 2007 in O.S.No.20 of 1997 on the file of
the District Munsif cum Judicial Magistrate, Kodaikanal and allow
the civil revision petition.
For Petitioner : Mr.V.R.Shanmuganathan
For Respondent : Ms.AL.Ganthimathi
***
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COMMON ORDER
These two civil revision petitions arise out of E.P.No.10 of
2007 filed by Thiru.A.R.Ramasamy Chettiar. A.R.Ramasamy Chettiar
is the petitioner in C.R.P.(MD)No.1863 of 2012 and the respondent
in C.R.P.(MD)No.1801 of 2012. He filed O.S.No.20 of 1997 for
passing final decree based on the preliminary decree for rendition
of accounts passed in O.S.No.9 of 1977 on the file of the Sub Court,
Devakottai. Final decree was passed decreeing his claim for a sum
of Rs.48,83,389/- with interest @ 6% p.a. to be calculated with
effect from 26.10.2006. The said decree has since been confirmed
in S.A.(MD)No.780 of 2010 by this Court today. In the meanwhile to
enforce the decree, Thiru.Ramasamy Chettiar filed E.P.No.10 of
2007. In the said E.P., order was passed on 03.08.2012 bringing the
building in question for sale. The building belongs to the other
revision petitioner Vairavan Chettiar / third defendant in the suit.
The executing Court has valued the building at Rs.90,00,000/- and
has ordered that the building alone will be brought to sale and not
the land. Aggrieved by the said order, the decree holder has filed
C.R.P.(MD)No.1863 of 2012. Contending that the land is measuring
an extent of 84 cents, while the building is located on 16 cents and
that one of the judgment debtors alone cannot be mulcted with
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liability, C.R.P.(MD)No.1801 of 2012 has been filed. There is
consensus between both the revision petitioners that the Court
below could not have passed an order for bringing to auction the
building alone dehors the land.
2. I am satisfied that such an order could not have been
passed. It is not possible to divorce the building from the land. A
person who takes the building will for all practical purposes take
the land also. Since the land has not been valued, the person taking
the building will definitely be unjustly benefited. Therefore, the
impugned order definitely calls for interference. There is another
reason for doing so. The impugned order was passed way back in
the year 2012. We are now in 2022. A full decade has passed.
Therefore, in the very nature of things, the exercise of valuation will
have to be re-done.
3. Vairavan Chettiar / third defendant cannot be heard to say
that the decree holder cannot proceed against the property in
question. The property in question was inherited by him from his
father. His father was the first defendant in the suit. Of course,
following the demise of the father, all the sons were brought on
record and joint decree was passed against them. A person who is a
joint judgment debtor is in the analogous position of a guarantor. It is
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open to the decree holder to proceed against any property of any of
the judgment debtors on which he can lay hands. The judgment
debtor concerned cannot escape liability by claiming that he has
only a joint liability. The executing Court is obliged to proceed
against all the judgment debtors so that the claim of the decree
holder can be satisfied in full. Thereafter, the judgment debtor can
proceed against the other judgment debtors for recovering their
share of the decretal liability.
4. In this view of the matter, the order impugned in this civil
revision petitions is set aside. The matter is remitted to the file of
the District Munsif cum Judicial Magistrate, Kodaikanal. The
executing Court will take up the matter afresh and dispose of the
E.P. on merits and in accordance with law within a period of four
months from the date of receipt of a copy of this order. The
executing Court will bear in mind that the object of the execution is
only to satisfy the decree. Even according to the decree holder, the
amount payable comes to Rs.48,83,389/- with interest @ 6% p.a. to
be calculated with effect from 26.10.2006. The land in question is
said to measure around 84 cents. The Court below shall undertake a
separate valuation exercise for the land as well as the building. In
other words, if it is possible to parcel out a piece of land and if sale
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of the parceled out land can satisfy the decree, the building has to
be spared. There cannot be excess execution.
5. With these observations and clarifications, both the civil
revision petitions are allowed. No costs.
01.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
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.
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G.R.SWAMINATHAN,J.
PMU
To:
1. The District Munsif cum Judicial Magistrate,
Kodaikanal.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P.(MD)Nos. 1801 & 1863 of 2012
01.03.2022
https://www.mhc.tn.gov.in/judis
