Madras High Court
A.Premila vs Justina Singaraj on 21 August, 2023
CMSA No.17 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.08.2023
CORAM:
THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN
C.M.S.A.No.17 of 2010
and M.P.No.1 of 2010
A.Premila .... Petitioner
Vs
1. Justina Singaraj
2. Catherine Nathan
3. Rosaline Francis (Died)
4. S.J.Arokiadass
5. Jerry Nirmal
6. Preeti Robert
7. Joe Benjamin
(Respondents 5 to 7 brought on record
as LRs of the deceased R-3 vide court
order dated 25.04.2022 made in CMP
No.6405 of 2022 in CMSA) ... Respondents
PRAYER: Civil Miscellaneous Second Appeal filed under Order 43 of CPC
read with Section 100 of CPC against the fair and Decreetal order dated
07.04.2010 made in CMA No.1 of 2007 on the file of Subordinate Judge,
Ranipet, Vellore District, reversing the fair and decretal order dated 14.02.2006
made in E.A.No.72 of 2005 in E.P.No.13 of 2004 in O.S.No.654 of 1980 on
the file of District Munsif, Arakkonam.
1/10
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CMSA No.17 of 2010
For Petitioner : Mr.M.Sriram
For Respondents : Mr.T.M.Hariharan
For R.1, R.2 and R.4
: R.3 died, steps taken.
: R.5 to R.7 - not ready in notice.
ORDER
The decree holder in O.S.No.654 of 1980 is the appellant before me. The
proceeding arises out of an execution.
2. O.S.No.654 of 1980 was a suit for Specific Performance of an
agreement of sale. The said suit was decreed on 25.02.1987. A direction was
given to pay the balance sale consideration of Rs.55,000/- on or before
25.05.1987 and to take delivery of property. Aggrieved by judgment and
decree, a regular appeal was preferred before this Court in A.S.Nos.394 and 395
of 1987. The said appeals were dismissed by judgment dated 16.12.2002.
3. Pending first appeal, in A.S.No.394 of 1987, a stay application was
moved in C.M.P No.8351 of 1987. The stay application was heard along with
vacate stay petition in C.M.P No.12093 of 1993. A condition was imposed that
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CMSA No.17 of 2010
on payment of the suit costs, the stay will be made absolute. Suit costs was not
paid and therefore, the stay was vacated on 08.02.1994. Pursuant to the stay
having been vacated, an execution petition in E.P.No.90 of 1994 was filed. The
said execution petition was originally filed before the Subordinate Court,
Arakkonam. Due to change in pecuniary jurisdiction of the Court, the same was
transferred to District Munsif Court, Arakkonam.
4. It was the case of the petitioners that they were not aware of the
transfer of the decree to Arakkonam and therefore, they were not in a position to
appear before the Court on 28.02.2005. Hence they filed an application under
Order 21 Rule 106 read with Section 151 of Civil Procedure Code. The learned
District Munsif dismissed E.A.No.72 of 2005 (application filed under Order 21
Rule 106 of CPC) by order dated 14.02.2006. Against which, Civil
Miscellaneous Appeal was preferred in CMA No.1 of 2007. The CMA was
allowed on 07.04.2010 and remanded to District Munsif Court, Arakkonam.
Aggrieved over the same, the present CMSA No.17 of 2010 has been filed. The
order under challenge is not a decree or even a deemed decree. Therefore, an
appeal is not maintainable. Nonetheless, it is revisable by the Court. Hence, I
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CMSA No.17 of 2010
heard it as a revision.
5. I have my own doubts as to whether CMSA is maintainable, but for the
purpose that the order I am going to pass, it is irrelevant because even if it is to
be treated as a Civil Revision Petition, it would still lie before this Court.
Therefore, I hear the matter on merits.
6. Heard Mr.M.Sriram for the appellant and Mr.T.M.Hariharan for the
respondents 1, 2 and 4.
7. Mr.M.Sriram, learned counsel would bring to my notice that it matters
not whether notice was issued to the petitioner in the execution petition since
the execution petition was pending from 1990 and the decree holder had
deposited all the money as required as per the decree and further after serious
contest, the first appeal before this Court was dismissed on 16.12.2002.
8. Mr.T.M.Hariharan would submit that a fraud had been played on the
Court by virtue of the fact that the persons whom his clients had not authorised
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CMSA No.17 of 2010
viz.,M/s.Ammer and Jayasankar, had appeared on their behalf. He adds, the
appellants were not aware of the said counsel nor had any connection with
them. He would state that a drama of appearance came to be enacted at the
instance of one Mr.Ananthan, who is the counsel and the husband of the decree
holder Premila in O.S.No.654 of 1980. He would therefore plead that the order
of the remand be sustained and CMSA be dismissed.
9. I have carefully considered the arguments of either side.
10. It is not in dispute that O.S.No.654 of 1980 was decreed by a
judgment and decree of the learned Additional Subordinate Judge, Vellore dated
25.02.1987. It is further admitted case of both sides that as against O.S.No.654
of 1980, an appeal was preferred before this Court in A.S.Nos.394 and 395 of
1987. The said appeals were dismissed after contest on 16.12.2002. In fine, the
decree for specific performance had been confirmed and has attained finality.
11. The execution petition was initiated on account of the fact that the
respondents did not comply with the interim order of this Court. The stay
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CMSA No.17 of 2010
having been vacated, the successful decree holder in O.S.No.654 of 1980 had
filed Execution Petition in EP No.90 of 1994. The said execution petition was
languishing for more than 15 years and finally as the judgment debtors did not
contest the same, they were set exparte and a direction was given that the sale
deed be executed in EP No.13 of 2004 dated 28.02.2005.
12. In the affidavit filed in support of E.A.No.72 of 2005, there is no plea
that fraud had been played either on the Court or on the party. The only plea for
absence is that they had not engaged a lawyer in order to defend their case. The
very fact of their absence and the plea that they had not engaged a lawyer
implies that summons were duly served on them for hearing date. They were
aware that the execution proceedings were initiated but still they did not take
any effort to come and defend the same.
13. The issue whether they engaged an advocate or not becomes
irrelevant because the point still remains that notice was served and the
judgment debtors did not appear before the Court for a proceeding, which had
been pending nearly for 25 years. The Court cannot keep waiting for judgment
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CMSA No.17 of 2010
debtors to engage lawyer and come before it in order to contest the proceedings.
14. I have to recollect that the suit is of the year 1980; the decree is of the
year 1987, stay was vacated in the year 1994; appeal was dismissed in the year
2002 and finally sale deed was executed in the year 2005. In this long period of
25 years, the judgment debtors had attempted every trick known in the book for
delaying the proceedings. In fact, the unfortunate persons are the decree holders
because even though stay was vacated some time in 1994, they could not get the
decree executed till 2005.
15. I would also look at this through another angle. The appeal was
contested and dismissed on 16.12.2002. The decree holder is entitled to put the
decree in execution without notice to other side when it is a contested decree
under Order 21 Rule 22 of Civil Procedure Code. Therefore, in any event, no
prejudice would be caused to the judgment debtors by the fact that the sale deed
had been executed by the Court below.
16. Apart from that Mr.M.Sriram states that delivery of the suit property
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CMSA No.17 of 2010
was also taken on 08.01.2008, pursuant to an application filed for delivery of
possession in E.P.No.90 of 1994.
17. I have absolutely no intention to unsettle settled matters, which will
be the effect in case I confirm the order of the lower appellate Court.
18. Consequently, CMSA No.17 of 2010/Revision is allowed. The order
of the remand passed by the lower appellate Court in CMA No.1 of 2007 dated
07.04.2010 is hereby set aside. No costs. Consequently, connected
miscellaneous petition is closed.
21.08.2023
Index:Yes/No
Speaking order/Non-speaking order
sr
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CMSA No.17 of 2010
To
1. The Subordinate Judge,
Ranipet, Vellore District.
2. The District Munsif,
Arakkonam.
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CMSA No.17 of 2010
V.LAKSHMINARAYANAN,J.
sr
CMSA No.17 of 2010
21.08.2023
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