Madras High Court
Banupriya vs Tamilselvi on 11 July, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.07.2023
CORAM
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
C.R.P.Nos. 97 and 98 of 2021
and
C.M.P.Nos.899 and 903 of 2021
C.R.P.No.97 of 2021
Banupriya ...Petitioner
Vs.
1.Tamilselvi
2.Amutha ...Respondents
Common Prayer: Civil Revision Petition filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
05.03.2020 passed in E.A.No.155 of 2019 in E.P.No.23 of 2016 in
O.S.No.86 of 2004 on the file of the Learned Principal District Munisf,
Ulundurpet.
In both CRPs.
For Petitioner : Mr.T.S.Baskaran
For Respondents : Mr.D.Vasanth
: for Mr.N.Suresh.
https://www.mhc.tn.gov.in/judis
COMMONORDER
These Civil Revision Petitions arise against an order dated 05.03.2020
passed under Order 21 Rule 106 of Code of Civil Procedure, 1908 in
E.A.No.155 of 2019 in E.P.No.23 of 2016 in O.S.No.86 of 2004 on the file
of the Learned Principal District Munisf, Ulundurpet.
2. The petitioners before me are the judgment debtors. They were
served with the copy of the Execution Petition for the hearing date
28.08.2014. The matter has suffered an adjournment and finally on
18.01.2019 they were set ex-parte. An application to set aside the ex-parte
order was filed on 07.01.2020.
3. The Learned Trial Judge dismissed the application on the ground
that no cause had been shown to set aside the ex-parte order.
4. The suit is of nearly 29 years vintage. The suit for partition was
filed in O.S.No.53 of 1994. It was decreed on 14.11.2000. To pass a final
https://www.mhc.tn.gov.in/judis
decree, an application was filed in I.A.No.284/2004. It was passed on
30.12.2004. An execution petition was filed on 25.01.2016 and EP was
ordered on 18.01.2019. The ex-parte order was passed on 18.01.2019.
5. The case of Mr.T.S.Baskaran, learned Counsel for the petitioners, is
that the petitioners were minors and they have declared major only pending
the execution proceeding.
6. I have gone through the dates on which the first son became a
major. During the relevant time when he filed an affidavit he was 32 years
old. Therefore, to plead minority is only a smoke screen projected for the
purpose of getting over the decree. The decree is for a partition and as
already pointed out 29 years have gone by.
7. The Civil Revision Petitioners have also been allotted properties in
the partition decree. They can always execute that portion of the decree by
paying separate court fee and levying separate execution.
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8. Mr.T.S.Baskaran, learned counsel for the petitioner would argue
that the entire decree has been obtained by fraud and therefore, the partition
decree must be re-opened. That is not a matter for the executing court to
decide. The law that an executing court cannot go behind the decree is as
ancient as the hills. If I were to permit such pleas to be raised before the
executing court, then executions would never come to an end. The affidavit
does not state even a single reason as to why the parties were not present
before the court on 18.01.2019. Apart from that, the reason for the delay,
caused between 18.01.2019 and filing of the application dated 17.12.2019
has not been explained at all.
9. It is of utmost necessity that the execution proceedings are
completed at the earliest. To give an opportunity to all invented stories and
projected causes which do not exist will only delay the execution. Therefore,
the application seeking to set aside the ex-parte order was rightly dismissed.
10. I am not convinced with the reasons in C.R.P.Nos.97 and 98 of
2021. These Civil Revision Petitions stand dismissed. No costs. Connected
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Civil Miscellaneous Petitions are closed.
11.07.2023
Index : Yes/No
Neutral Citation Case : Yes/No
nst
To:
The Principal District Munsif,
Civil Judge (Junior Division),
Ulundurpet.
https://www.mhc.tn.gov.in/judis
V. LAKSHMINARAYANAN.J,
nst
C.R.P.Nos. 97 and 98 of 2021
and
C.M.P.Nos.899 and 903 of 2021
https://www.mhc.tn.gov.in/judis
11.07.2023
https://www.mhc.tn.gov.in/judis
