Mrs.Hyravathy vs R.Raju
2023 Latest Caselaw 8629 Mad

                                                                                   C.R.P.No.1660 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 19.07.2023

                                                        CORAM:

                        THE HONOURABLE Mr. JUSTICE V. LAKSHMINARAYANAN

                                         Civil Revision Petition No.1660 of 2019
                                                           and
                                                C.M.P.No.10767 of 2019

                  Mrs.Hyravathy                                                       ... Petitioner

                                                           Vs.

                  R.Raju                                                           ...Respondent

                  Prayer: Civil Revision Petition filed under Article 227 of Constitution of
                  India, to set aside the fair and final order dated 0.10.2018 made in
                  E.A.No.4165 of 2018 in O.S.No.7508 of 1999 on the file of X Assistant
                  Judge, City Civil Court, Chennai.


                                   For Petitioner     : Mr.Prabu

                                   For Respondent     : Mr.P.C.Harikumar

                                                          ORDER

The judgment debtor is the civil revision petitioner. The judgment

creditor was successful in obtaining a decree in O.S.No.7508 of 1999 on the

file of III Assistant Judge, City Civil Court, Madras. A decree was passed on

25.07.2005. In order to execute the decree, an Execution Petition was filed https://www.mhc.tn.gov.in/judis

C.R.P.No.1660 of 2019

along with an application under Order 21 Rule 16 of Civil Procedure Code in

EASR No.28504 of 2018. Without passing an order in the application filed

under Order 21 Rule 16 of Civil Procedure Code, the Executing Court

condoned the delay in representation in E.A.No.4164 of 2018 and numbered

the Execution Petition.

2. An application under Order 21 Rules 5 and 6 of Civil Procedure

Code to transmit the decree is also initiated by way of an Execution Petition.

The petition, seeking transmission of the decree, is also a petition filed in

execution. When it is claimed that a judgment creditor has assigned the

decree in favour of a third party, then the Court would have to necessarily

apply its mind in an application filed under Order 21 Rule 16 of Civil

Procedure Code. Once that application is allowed, the main Execution

Petition should have been taken on file.

3. In an application filed under Order 21 Rule 16 of Civil Procedure

Code, notice should go to the judgment debtor bringing to the notice of the

judgment debtor that the judgment creditor has assigned the decree in favour

of the applicant. The purpose for such an application is not far to see. It is to

enable the judgment debtor to satisfy the decree either at the hands of the https://www.mhc.tn.gov.in/judis

C.R.P.No.1660 of 2019

judgment creditor or at the hands of the assignee.

4. In the present case, the learned Judge has straight away numbered

the application in EA No.4165 of 2018 and ordered transmission. The

learned Judge has unfortunately kept the application filed under Order 21

Rule 16 of Civil Procedure Code pending, without disposing of the same.

Such a procedure is contrary to Order 21 Rules 5 and 6 read with Order 21

Rule 16 of Civil Procedure Code.

5. Therefore, the Civil Revision Petition is allowed. The order passed

by the learned X Assistant Judge, City Civil Court, Chennai in E.A.No.4165

of 2018 in O.S.No.7508 of 1999 is set aside. The matter is remitted to the

learned X Assistant Judge, City Civil Court, Chennai. The learned X

Assistant Judge, City Civil Court, Chennai shall number the application filed

in EASR No.28504 of 2018. He shall issue notice to the judgment debtor,

hear the objections of the judgment debtor and thereafter, decide the

application on merits. Only thereafter, he shall take up the application filed

for transmitting the decree to the file of District Munsif Court, Thiruvotriyur,

Chennai.

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

C.R.P.No.1660 of 2019

V. LAKSHMINARAYANAN sr

6. With the above observation, the Civil Revision Petition is allowed.

No costs. Consequently, connected miscellaneous petition is closed.

19.07.2023

Index:Yes/No Speaking Order: Yes/No sr

To

The X Assistant Judge, City Civil Court, Chennai

C.R.P.No.1660 of 2019

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