Madras High Court

S.Baskar vs M.Subramanian on 23 August, 2023

                                                                                        C.R.P.No.3968 of 2022

                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 23.08.2023

                                                              CORAM:

                                    THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                                      C.R.P.No.3968 of 2022

                     S.Baskar                                            ...   Petitioner

                                                                 Vs.

                     1. M.Subramanian
                     2. Jaisankar                                ... Respondents
                            Civil Revision Petition filed under Section 115 of Civil Procedure

                     Code to set aside the fair and decreetal order dated 26.10.2022 in

                     E.P.No.18 of 2013 in O.S.No.311 of 2007 passed by the learned District

                     Munsif, Kancheepuram and allow the present Revision Petition.

                                        For Petitioner       : Mr.R.Sunilkumar

                                        For Respondents      : R1 and R2 – No appearance

                                                          ORDER

The present Revision Civil Revision Petition has been filed to set

aside the fair and decreetal order dated 26.10.2022 in E.P.No.18 of 2013 in

O.S.No.311 of 2007 passed by the learned District Munsif, Kancheepuram

and allow the present Revision Petition.

2. The brief facts of the case is as follows:-

The petitioner, who is the plaintiff has preferred O.S.No.311 of 2007

against the respondents / defendants to set aside the sale deed dated

10.07.2002 in document no.1918/2002 on the file of Sub Registrar, https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

Walajabad and to direct the 2nd respondent / 2nd defendant to handover the

vacant possession of the suit property to the petitioner / plaintiff. The said

suit was decreed on 12.07.2012. Subsequently, E.P.No.18 of 2013 was

filed by the petitioner and after a period of four years from the date of

decree, appeal was filed filed by the 2nd respondent / 2nd defendant and the

same was numbered as A.S.No.1 of 2017 and is pending. Further, the

said E.P.No.18 of 2013 was dismissed on 26.10.2022, as against the

same, the petitioner / plaintiff has come up with the present Revision.

3. The learned counsel for the petitioner would submit that the

learned District Munsif, Kancheepuram ought to have considered that it is

now a well settled principle of law that mentioning of a wrong provision or

non-mentioning of any provision of law would, by itself, is not sufficient to

take away the jurisdiction of a court, if it is otherwise vested in it in law.

4. Further, the learned cousel for the petitioner would contend that

the learned Principal District Munsif ought to have considered the accepted

legal principle that mere pendency of the appeal does not operate as stay

on the decree appealed against nor on the proceedings in the court below,

thereby pleaded to set aside the order passed by the court below.

5. Though notice was ordered through court and privately as early as

on 09.12.2022 and private notice was served on respondents 1 and 2,

there is no representation for the respondents either in person or through https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

learned counsel.

6. Heard the learned counsel for the petitioner and perused the

documents placed on record.

7. It is relevant to point out that the court below has dismissed the

E.P.No.18 of 2013 on 26.10.2022 on two grounds, viz., (1) the petitioner

quoted Order 21 Rule 11(A) and Section 151 of CPC instead of Order 21

Rule 34 and 35 CPC in the Execution Petition (2) Execution Petition is not

maintainable on account of pendency of the appeal filed by the Judgment

debtor in A.S.No.1 of 2017.

8. It is necessary to deal with the first ground at first instance, viz.,

'quoting of wrong provision of Law'. This Court, in CRP No.1203 of 2001

dated 28.01.2002 reported in 2002(3) CTC 22 [Bhuvaneswari Vs.

R.Elumalai] at paragraph no.14 has held as follows:

“14.The time granted by the court for the representation of the plaint, is only an administrative order and not a judicial order, and as such, if there is any delay in the representation of the plaint, an application to excuse the said delay could be filed under Section 151 CPC and it need not necessarily be the one under Section 148 CPC.

In fact, Section 151CPC is an omnibus provision available in the code to make suitable orders, which are necessary to meet the ends of justice and therefore, the application, which was filed under Section https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

151 CPC could have been allowed by the trial court. Even otherwise, the substance of the petition is more important than the form. Mere quoting of the provision wrongly, is not fatal to the petition itself. In that view of the matter also, the trial court could have allowed the said petition in excusing the delay in representation of the plaint. But, however, the court had taken a rigi d view that the petitioner ought to have filed the petition either under section 148 CPC or under Section 149 CPC and dismissed the petition. The said view of the trial court is an erroneous one and liable to be set aside. In fact, in this case, the plaint itself has not been admitted and the trial has not been commenced and it would not prejudice the case of the defendant to any extent, and that is also yet another reason, in favour of the petitioner to allow the petition. The defendant has got enough time to put forward his defence in the suit and his right to defend the case would not at all be prejudiced.”

9. It cannot be forgotten that the Hon'ble Supreme Court of India in a

judgment in Civil Appeal No.10521 of 2013 [Pruthvirajsinh Nodhubha

Jadeja (D) vs. Jayeshkumar Chhakaddas Shah] has observed that

“mere non-mentioning of an correct provision is not fatal to the application,

if the power to pass such an order is available with the court as it is well-

settled law”.

10. Taking into consideration of the above mentioned order passed

by this Court as well as the Judgment passed by the Hon'ble Apex Court,

this Court is of the view that the rejection of the execution petition by the

court below on the ground of non-mentioning of correct provision of law, is https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

unsustainable in the eye of law.

11. Further, moving on to the second point, viz., 'Execution Petition

is not maintainable on account of pendency of the appeal filed by the

Judgment debtor in A.S.No.1 of 2017' is concerned, it is pertinent to point

that the suit in O.S.No.311 of 2007 was filed by the petitioner and the same

was decreed on 12.07.2012. Subsequently, execution petition in

E.P.No.18 of 2013 was filed, nearly, after four years, viz., in the year 2017,

2nd respondent / 2nd defendant filed A.S.no.1 of 2017. The interim stay of

execution of decree granted in A.S.No.1 of 2017 was vacated, vide order

dated 12.10.2018, wherein it is stated that 'As per Supreme Court

judgment, the stay grant by Sub Court stands automatically vacated. No

extention of stay. Arguments by 31.10.2018' .The Hon'ble Supreme

Court in a case reported in 2023 Livelaw (SC) 63 [Sanjiv Kumar Singh

Vs. The State of Bihar & Ors] has held that “unless the appeal is listed

and there is an interim order, “the mere filing of the appeal would not

operate as a stay. If that be so, the Judgment and decree would enure to

the benefit of the petitioner as on today and the rejection of the NOC only

on the ground that the appeal has been filed, would not be justified”.

12. It is necessary to extract the relevant provisions of Order 41 Rule

5 (1) CPC :

Rule 5. Stay by Appellate Court.— (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

13 .The above provision makes it clear that the filing of appeal does

not automatically operate as a stay of decree or order appealed from,

unless Appellate court passes an order of stay. Further, an execution of the

decree cannot be stayed only because of the reason of filing of an appeal

against the decree of order, unless the Appellate court expressly stay the

execution of the decree on Appellant filing an application for stay of decree

or order. In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.

(2005) 1 SCC 705, while dealing with the provisions of Order 41 Rule 5

CPC, the Hon’ble Supreme Court observed as under:-

“Mere preferring of an appeal does not operate as stay of decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made.”

https://www.mhc.tn.gov.in/judis

C.R.P.No.3968 of 2022

Similar view was taken by Delhi High Court in the case of Ram Singh &

Ors. vs Sohinder Singh Bedi in C.M. No. 12001/2009 in RFA No.

138/2005 dated 25.08.2010.

14. Thus, it is clear that the filing of appeal is not a stay of decree or

order or the appeal is not automatic stay of decree or order. Unless a stay

application praying for stay on the execution of the decree or order is filed

and a stay of decree or order to that effect is granted by the Appellate

Court, mere filing of appeal does not operate as a stay.

In view of the above discussions, the present Civil Revision Petition

is allowed and the order dated 26.10.2022 passed in E.P.No.18 of 2013 in

O.S.No.311 of 2007 by the learned District Munsif, Kancheepuram is set

aside. No costs.

23.08.2023

Index:Yes/No Internet:Yes/No Speaking / Nonspeaking order ssd

To The District Munsif,