Madras High Court
Sankar vs Mariappan on 7 November, 2022
CRP(MD)No.1755 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.11.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.1755 of 2022
and
CMP(MD)No.7767 of 2022
1.Sankar
2.Krishnammal : Petitioners
Vs.
Mariappan : Respondent
PRAYER: Civil Revision Petition filed under Article 227
of the Constitution of India to call for the records
relating to the fair and decreetal order dated
23.06.2022 passed by the Additional District Court
(FTC), Tenkasi, in I.A.No.3 of 2021 in A.S.No.47 of
2019 and to set aside the same.
For Petitioners : Mr.D.Srinivasa Ragavan
For Respondent : Mr.M.Thirunavukkarasu
*****
ORDER
This revision petition is filed as against the
orders of the Additional District Court, Tenkasi, in
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CRP(MD)No.1755 of 2022
I.A.No.3 of 2021 in A.S.No.47 of 2019, dated
23.06.2022.
2.The petitioners are the defendants in the suit in
O.S.No.54 of 2014 and they filed an appeal as against
the judgment and decree dated 02.02.2019 passed in the
suit. The said suit was filed by the respondent /
plaintiff for recovery of money based on a pro-note.
The suit was decreed, directing the petitioners to pay
a sum of Rs.6,90,600/-.
3.Pending the appeal, the respondent / decree
holder filed an interlocutory application in I.A.No.3
of 2021 under Order 41 Rule 1 CPC for a direction to
the petitioners / judgment debtors to deposit the
decree amount. The lower Appellate Court allowed the
said application vide order dated 23.06.2022, with a
condition that if the appellants / petitioners herein
fail to deposit the decree amount on or before
30.06.2022, the appeal will be dismissed. Aggrieved
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CRP(MD)No.1755 of 2022
over the same, the petitioners have moved the present
revision petition.
4.Learned Counsel for the petitioners submitted
that the petitioners are disputing the very liability
itself and they have also filed an application in
I.A.No.1 of 2019 for comparison of signatures found in
Ex.A1 pro-note. That application was allowed and a
Commissioner was also appointed. When the matter is
pending for the report of the Commissioner, the
respondent has filed the interlocutory application
under Order 41 Rule 1(3) CPC and the same was also
allowed on 23.06.2022 with a condition that if the
petitioners fail to pay the decree amount on or before
30.06.2022, then the appeal itself would be dismissed.
By giving hardly seven days time, the petitioners were
directed to pay the amount, which is being disputed. In
fact, though the order was passed on 23.06.2022, the
order copy was made ready only on 20.07.2022.
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CRP(MD)No.1755 of 2022
5.Learned Counsel for the respondent submitted that
the pro-note is of the year 2012 and the suit, which
was filed in the year 2014, was decreed only on
02.02.2019. Therefore, he filed the application under
Order 41 Rule 1(3) CPC, which was also rightly allowed
by the lower appellate Court.
6.This Court paid it's anxious consideration to the
rival submissions and also to the materials placed on
record.
7.When an appeal is directed as against a decree
for payment of money, on the application filed by the
decree holder, the appellate Court may fix the time
limit and direct the judgment debtor to deposit the
amount disputed in the appeal or to furnish such
security in respect of that amount, as per Order 41
Rule 1(3) CPC.
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CRP(MD)No.1755 of 2022
8.By relying this provision, the respondent /
plaintiff / decree holder has filed the interlocutory
application and the lower appellate Court has also
allowed the application, which cannot be found fault
with. But, while doing so, the lower appellate Court
has also put up a condition that on the failure of
payment of the amount on or before 30.06.2022, the
appeal itself will be dismissed.
9.While the appellate Court can direct the
appellant to pay / deposit some amount, as per Order 41
Rule 1(3) CPC, it cannot pass an order that for the
non-compliance of the condition, the appeal itself
would be dismissed. As per Order 41 Rule 5(5) CPC, any
non-compliance of the directions issued under Order 41
Rule 1(3) CPC would result in the dismissal of the
application filed for staying the execution of the
decree by the appellate Court and not the very appeal
itself.
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CRP(MD)No.1755 of 2022
10.For better appreciation, Order 41 Rule 5(5) CPC
is extracted as under:-
“Notwithstanding anything contained in the
foregoing sub-rules, where the appellant fails
to make the deposit or furnish the security
specified in sub-rule (3) of rule 1, the Court
shall not make an order staying the execution of
the decree;”
11.Therefore, the order of the lower appellate
Court dated 23.06.2022, to this limited extent warrants
interference and accordingly, the same is quashed.
12.During the course of the arguments, it is
represented that the respondent / decree holder has
already filed an execution petition in E.P.No.168 of
2022 and it is being adjourned. As held supra, if there
is any non-compliance of the order passed under Order
41 Rule 1(3) CPC, there cannot be any bar / stay for
the Court in proceeding with the execution petition, as
per Order 41 Rule 5(5) CPC.
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CRP(MD)No.1755 of 2022
13.Considering the age of the proceedings, the
learned Additional District Judge, Tenkasi, shall
endeavor to conclude the proceedings in A.S.No.47 of
2019, as expeditiously as possible, preferably within a
period of three months from the date of receipt of a
copy of this order.
With the above observations and directions, this civil revision petition stands disposed of.
No costs. Consequently, connected miscellaneous petition stands closed.
Index : Yes / No 07.11.2022
Internet : Yes
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To
The Additional District Judge,
Tenkasi.
https://www.mhc.tn.gov.in/judis
CRP(MD)No.1755 of 2022
B.PUGALENDHI, J.
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CRP(MD)No.1755 of 2022
07.11.2022
https://www.mhc.tn.gov.in/judis
