Madras High Court
Jayam vs Poongothai on 3 August, 2023
C.R.P.(NPD)No.2691 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P(NPD)No.2691 of 2019
and CMP.No.17738 of 2019
Krishnasamy Chettiar (Died)
Govindasamy Chettiar (Died)
1.Jayam
2.G.Rajendran (Died)
3.G.Gajendran
4.G.Nagendiran
5.G.Selvendiran
6.G.Balavendran
7.R.Vasanthy
8.S.Amudha
9.Selvi
10.Tayanayaguy
11.Vijayendran @ Rengan
12.R.Rajalakshmi ... Petitioners
(P10 to P12 brought on record as LRs of the
deceased Petitioner-2 Viz.G.Rajendran vide Court
order dated 13.07.2023 made in CMP.No.6477 of 2021
in CRP.No.2691 of 2019)
vs
Velu Udayar (Died)
1.Poongothai
2.Santhi
3.Ramamurthy
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C.R.P.(NPD)No.2691 of 2019
4.Vasuki
5.Vasanthi .. Respondents
Petition filed under Article 227 of the Constitution of India against
the Order dated 09.04.2019 made in the Memo filed in E.A.No.103 of
2018 in E.P.No.26 of 2004 in O.S.No.7 of 1977 on the file of Principal
District Munsif Court, Karaikal to set aside the same.
For Petitioners : Mr.R.Thirugnanam
For Respondents : Mr.T.M.Naveen (for R3)
No Appearance (for R2, R4 & R5)
R1 - Died
ORDER
The petitioners before me are the judgment debtors. The suit had
been presented in O.S.No.7 of 1977 on the file of the learned Principal
District Munsif Court, Karaikal. The suit was decreed on 29.11.1979. An
appeal in A.S.No.1 of 1980 was allowed on 28.02.1981. The Second
Appeal, which was preferred therefrom in S.A.No.112 of 1982 was
allowed on 19.12.1991.
2.On the basis of the decree obtained, an Execution Petition was
filed in E.P.No.26 of 2004. In the said Execution Petition, the civil
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C.R.P.(NPD)No.2691 of 2019
revision petitioners filed an application under Section 47 of the Code of
Civil Procedure in order to declare the decree is inexecutable. The
application was dismissed by the trial Court on 22.07.2004. Against the
order passed under Section 47, a civil revision petition was preferred in
CRP.No.397 of 2005 and the same was dismissed on 06.06.2008.
3.In the meantime, the Execution Petition was closed, perhaps for
statistical purposes, with liberty to restore the E.P., if the need arises.
After the disposal of CRP.No.397 of 2005 on 06.06.2008, the judgment
creditors filed E.A.No.103 of 2018 to restore E.P.No.26 of 2004. In the
said application, notices were issued to the parties and they also entered
appearance through their counsel. At the time of issuance of notice, it
came to the knowledge of the parties as well as the Court that the first
judgment debtor, Krishnasamy Chettiar had passed away. Therefore,
applications were filed in E.A.No.159 of 2018 in E.A.No.103 of 2018 in
E.P.No.26 of 2004 and the same was pending.
4.Finding that the matter is pending consideration and being
delayed, the judgment debtors filed a memo stating that they want to
withdraw the E.P. with liberty to file a fresh petition to re-open
E.P.No.26 of 2004. The judgment debtors filed objection through the
third respondent on the ground that while they had no objection for
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C.R.P.(NPD)No.2691 of 2019
withdrawal of the petition filed to restore E.A.No.103 of 2018, they have
strong reservation for liberty being given for filing a fresh application on
the same cause of action.
5.Considering the objections of both sides, the Court decided to
order the memo and grant liberty to the parties to restore the E.P. by
filing a fresh application. Challenging the same, the present revision
petition has been presented.
6.I heard Mr.R.Thirugnanam, learned counsel, who appeared for
the judgment debtors/civil revision petitioners and Mr.T.M.Naveen,
learned counsel appearing for the decree holder.
7.Mr.Thirugnanam would contend that by way of a memo, liberty
should not have been granted and an appropriate application should have
been filed together with an affidavit and petition. He would also bring to
my notice, a judgment passed by this Court in P.T.Lee Chengalvaraya
Naicker Trust v. S.Shanmugam and others [2014 (5) CTC 465]. In
particular, he would draw my attention to paragraph No.22 and would
state that when applications are pending for consideration before a
Court, filing of a memo seeking an order for issuance of necessary
directions is not a desirable/prudent practice. Relying on the judgment,
he would state that a memo ought to be filed only to record certain facts
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C.R.P.(NPD)No.2691 of 2019
in a proceeding and not seeking liberty to file a fresh petition.
8.I have to point out that the judgment was rendered in the
circumstances of a scheme suit under Section 92 pending on the Original
Side of the Madras High Court. The procedure followed by the Original
Side of the Madras High Court is different from the procedure followed
by the District Judiciary. Insofar as the District Judiciary is concerned,
the procedure that they adopt is governed by virtue of the rules framed
by the Court under Section 122 of the Code of Civil Procedure read with
Article 227 of the Constitution of India. These are statutory rules and
which have been notified as the Civil Rules of Practice and Circular
Standing orders of the High Court.
9.It is here that I wish to recollect the judgment passed by this
Court in Mangayarkarasi v. Suseela and others [AIR 2000 MADRAS
266] dealing with a similar issue. This Court was pleased to hold that an
opposite party cannot question the authority of the counsel in signing the
memo on behalf of his client and cannot insist that only the party should
sign and file the same. The objection that only an affidavit and petition
should have been filed and not a memo through the counsel, fails in the
light of the categorical view taken by this Court in the aforesaid
judgment.
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C.R.P.(NPD)No.2691 of 2019
10.Apart from that, going through the Civil Rules of Practice, the
definition of an “application” is given under Rule 3(2) of the same. An
application as per the definition includes, “Execution Petition,
Interlocutory Petition, whether written or oral”. There is no particular
format in which the application need to be made. Therefore, a memo can
be treated as an application within the meaning of Rule 3(2).
11.It is trite that the Code of Civil Procedure and the Civil Rules
of Practice are intended to give an opportunity to the parties for a fair
hearing.
12.That does not mean, that a decree holder, who has successfully
obtained a decree as early as 40 years ago should be denied the benefit
of filing a restoration application through a memo. This is especially so
when his previous execution petition was closed for statistical purposes.
The E.P. itself was closed only on account of the fact that the judgment
debtors had taken out an application under Section 47 of CPC. That was
finally dismissed. Against which, the civil revision petition was pending
before this Court.
13.The procedure, as it is said is only hand maiden of justice and it
does not affect the substantive rights of parties. The decree holder
having succeeded till this Court and the Section 47 application having
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C.R.P.(NPD)No.2691 of 2019
failed till the Supreme Court, it will be unfair on the part of the Court, if
it had not granted the liberty which had been sought for.
14.Therefore, in the light of the law that has been placed by this
Court as well as in the light of the expansive definition given to the word
“application” in the Civil Rules of Practice and Circular Standing orders,
I am dismissing the revision. Accordingly, this civil revision petition is
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
03.08.2023
Index:Yes/No
Speaking order/Non-speaking order
Neutral Citation:Yes/No
vs
To
The Principal District Munsif Court,
Karaikal.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.2691 of 2019
V. LAKSHMINARAYANAN,J.
vs
C.R.P(NPD)No.2691 of 2019
and CMP.No.17738 of 2019
03.08.2023
https://www.mhc.tn.gov.in/judis
