Madras High Court
Muniyandi vs Janaka on 9 August, 2023
CRP.No.3199 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.08.2023
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
CRP.No.3199 of 2018
and
CMP.No.14572 of 2016
Duraisamy Udaiyar (Died)
1. Muniyandi
2. Gunabushanam (Died) vide Separate Sheet order
3. Baby
4. Natarajan
5. Sekar
6. Srinivasan
7. Parthasarathy (Died)vide Separate Sheet order
8. Thangaraj
9. Devaraj
10. Amudha
11. Babu
12. Loganayaki
13. T.Praveenkumar
14. T.Banupriya
Petitioners 12 to 14 brought on record as LRs of the
deceased P-8 viz Thangaraj vide Court order dated
08.08.2022 made in CMP.No.14109 of 2021 in CRP.No.3199
of 2018
15. P.Santhi
16. P.Prabhakaran
17. P.Sivakumar
Petitioners 15 to 17 brought on record as LRs of the
deceased P-7 viz Parthasarathy vide court order dated
1/11
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CRP.No.3199 of 2018
08.08.2022 made in CMP.No.14132 of 2021 in
CRP.No.3199 of 2018.
18. M.Kousalya
19. D.Gouthawari
20. D.Muruganantham
21. B.Priya ...Petitioners
Petitioners 18 to 21 brought on record as LRs of the
deceased P-2 viz .Gunabushanam vide court order dated
08.08.2022 made in CMP.No.9164 of 2022 in CRP.No.3199
of 2018.
Vs.
Neelakanda Naicker (died)
1. Janaka
2. Sakthivel
3. Gokul
4. Gomathy ..Respondents
PRAYER: This Civil Revision Petition is filed under Section 115 of
C.P.C., praying to set aside the order and decreetal order dated 17.04.2018
passed by the learned District Munsif Judge at Madurantakkam, dismissing
E.P.Sr.No.2472 of 2016 in O.S.No.618 of 1971, and allow E.P.Sr.No.2472
of 2016by allowing the CRP.
For petitioners : Mr.N.Nagusah
For Respondent : Mr.Venkatesh Mohanraj
ORDER
Challenging the order passed in EP.SR.No.2472 of 2016 in
O.S.No.618 of 1971 on the file of the District Munsif Court,
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CRP.No.3199 of 2018
Madurantakkam, dated 17.04.2018, the Petitioners/Decree-holders have
preferred this Civil Revision Petition.
2. The petitioners herein are the decree holders pertaining to the
decree passed in O.S.No.618 of 1971 dated 24.10.1973 and they have filed
an Execution petition before the trial Court to execute the decree in respect
of the delivery possession of the suit property from the respondents
herein/Judgment debtors.
3. Before the trial Court takes the case on file, Executing Court has
held that, after lapse of 41 years, the petitioners herein had filed this petition
for execution of delivery of possession and as such it is barred by limitation.
Furthermore, the present petitioners are not a party to the original suit
proceedings and description also is not correct, besides, the dismissal of the
another suit in O.S.No.144 of 1977 is not at all connected with the present
suit proceedings, execution petition was rejected as it was barred by
limitation. Challenging the said findings, the decree holders have preferred
this civil revision petition.
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CRP.No.3199 of 2018
4. The learned counsel for the revision petitioners argued that the
Executing Court had erred in dismissing the EP in SR stage holding that it
is barred by law of limitation, without even properly perusing the Court
records, which would reveal that EP was filed within the limitation period
of 12 years. Further, he would submit that the Executing Court erred in
holding that the cause title in the EP as well as the decree in A.S.No.8 of
1974 do not tally with each other and the same is perverse and baseless for
the reason that after filing of the Execution application in the year 2016,
there were lot of events that had taken place due to the death of the plaintiff
and the defendants, which gives rise to implead the respective legal
representatives in the suit proceedings, which would lead to amendment of
cause title and without noticing the same, the rejection of Execution Petition
as such is totally unfair. Further, he also submitted that the Executing Court
failed to take note of the fact that the decree passed in O.S.No.618 of 1971
could not be executed by the decree holders due to order of stay/injunction
granted in various proceedings, such as CMA No.34 of 1977, A.S.No.109
of 1983, S.A.No.1671 of 1984 and S.L.P.No.3932 of 2003 arising from
proceedings in O.S.No.144 of 1977, which had prohibited the decree
holders from executing the possession decree granted in O.S.No.618 of
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CRP.No.3199 of 2018
1971, confirmed in A.S.No.8 of 1974. Further, he argued that period of
pendency of proceeding, is about 41 years 228 days and after such
exclusion of the time covered by the order of stay/injunction, the difference
of time is about 9 years and 164 days only. While the limitation time for
execution of decree is 12 years, the above EP has been filed within expiry
of 12 years period. But the Executing Court, without perusing the records
covering the period of stay/injunction and without calculating the time
consumed by the earlier proceedings, had erroneously rejected the
Execution Petition as barred by limitation. Hence, he prayed to allow this
Civil Revision Petition.
5. The learned counsel for the respondents submitted that the revision
petitioners have filed the Execution petition is squarely hit by limitation and
the cause title stated in the present Execution petition as well as the decree
in A.S.No.8 of 1974, is not tallying with the respective second appeal
decrees and Judgment and also with Civil Appeal No.9172 of 2003.
Therefore, the Executing Court had rightly appreciated the fact and rejected
the EP. Hence, he prayed to dismiss the Civil Revision Petition.
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CRP.No.3199 of 2018
6. On a perusal of the records, it reveals that originally, the suit in
O.S.No.618 of 1971 was filed by one Duraiswamy Udaiyar against one
Neelakanta Naicker for the relief of declaration of title and delivery of
possession of the suit property. During pendency of the proceedings, the
plaintiff Duraiswamy Udaiyar died and his legal heirs are the present decree
holders and the sole defendant also died and his legal heirs are the
Judgment debtors. The above said suit in O.S.No.618 of 1971 was decreed
in favour of the plaintiff on 24.10.1973, against which, the sole defendant
has filed an appeal in A.S.No.8 of 1974 on the file of the Sub Court,
Chengalpattu and the same was dismissed in favour of defendant on
12.03.1975, against which, S.A.No.1567 of 1975 was filed by the
defendant before this Court and the same was also dismissed on 12.03.1977,
thereby, the decree in O.S.No.618 of 1971 has become final and conclusive.
7. At the instigation of defendant, Sri Chempakeswarar Temple had
filed O.S.No.144 of 1977 before the same Court against the decree holders
and defendant and pending O.S.No.144 of 1977, the Temple has filed
CMA.No.34 of 1977 on the file of the District Court, Chengalpet, seeking
to stay the operation of Possession Decree passed in O.S.No.618 of 1971
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CRP.No.3199 of 2018
and the same was allowed, thereby, there is an order of stay of possession
Decree passed in O.S.No.618 of 1971 till the disposal of O.S.No.144 of
1977. The said suit in O.S.No.144 of 1977 was dismissed, against which,
the Temple had filed an appeal in A.S.No.109 of 1983, which was allowed
on 28.06.1984, thereby, the possession decree in O.S.No.618 of 1971 was
stayed, against which, the decree holder filed in S.A.No.1671 of 1984 and
the same was allowed on 23.10.2002 in favour of the decree-holder on
merits. As against the Judgment passed in S.A.No.1671 of 1984, the Temple
has preferred SLP.No.3932 of 2003 before the Supreme Court of India,
wherein the order of status-quo was granted and later the SLP was
converted into Civil Appeal No.9192 of 2003 . On 25.10.2013, the above
Civil Appeal was dismissed by the Supreme Court of India and
consequently, the decree holder was entitled to execution of possession of
the decree passed in O.S.No.618 of 1971.
8. Therefore, the decree holder has filed the present EP.Sr.No.2472 of
2016 on the file of the District Munsif Court, Madurantakkam to execute
the decree. In fact, the petitioners submitted that limitation period to file EP
is 12 years from the date of possession of the decree granted in favour of the
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CRP.No.3199 of 2018
decree holder. Accordingly, on 24.10.1973, the decree was passed and
calculating 12 years, the cut off date is 24.10.1985. But EP was filed on
09.06.2015 i.e., 29 years 228 days after the expiry of 12 years on
24.10.1985 .
9. As discussed above, the suit in O.S.No.144 of 1977 was filed by
the Temple and the injunction was granted by the trial Court in CMA.No.34
of 1977 and the decree of taking possession was stayed for 4 years 245
days. Furthermore, in CMP.No.14132 of 1984 in S.A.No.1671 of 1984, the
decree was stayed by this Court and the relevant period comes around to 18
years 97 days and in the SLP proceedings, status-quo was granted and the
relevant time for calculating the limitation comes is around 9 years 332
days. So, due to the injunction order as well as the subsequent stay
proceedings the time for calculating limitation comes around 32 years 309
days . Thus, stay order period comes to 32 years 309 days, Therefore, due
to the stay order covered granted by the Court proceedings in O.S.No.144 of
1977, the decree holder could not execute the decree.
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CRP.No.3199 of 2018
10. Therefore, the period of pendency of the proceedings, is to be
excluded as per Section 15(1) of the Limitation Act. Hence, the limitation
period for filing EP is 12 years from the date of decree, after exclusion of
the pendency proceedings period of 8 years 93 days, and it is covered by
limitation out of 12 years and still, the limitation period of 3 years 272 days
is avail alive. Furthermore, the decree holder, before the expiry of the said 3
years 272 days, filed the present EP and it is well within 12 years time but
without considering the pendency of the proceedings period as well as
Section 15(1) of the Limitation Act, the Executing Court erroneously
rejected the application and as such it is unfair and liable to be set aside.
Furthermore, the cause title was changed due to the death of the original
plaintiff and the defendant.
11. In the above circumstances and taking note of the calculation of
limitation period as above, this Civil Revision Petition is allowed. The
Executing Court is directed to number the EP.SR.No.2472 of 2016 after
rectifying the mistake if any, and if the same is otherwise in order dispose
of the EP within a period of 3 months from the date of receipt of copy of
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CRP.No.3199 of 2018
this order, by issuing notice to judgment debtors. Consequently, connected
miscellaneous petition is closed. No costs.
09.08.2023
Speaking / Non Speaking order
Neutral Citation : Yes/No
Index :Yes/No
msrm
To
The learned District Munsif Judge, Madurantakkam.
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CRP.No.3199 of 2018
T.V.THAMILSELVI.J,
msrm
CRP.No.3199 of 2018
09.08.2023
https://www.mhc.tn.gov.in/judis
