Madras High Court
Kannan vs Palaniappan on 24 July, 2023
C.R.P.(NPD)No.1332 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.(NPD)No.1332 of 2017
1.Kannan
2.Kandasamy
3.Kunthiyammal .. Petitioners
vs
1.Palaniappan
2.Lakshmi
3.Rajasekaran
4.Manikkam
5.Vijayakumari
6.Santhi
7.Gunasekaran
8.Sathiyamurthy
9.Sathiyaraj
10.Saranraj .. Respondents
Petition filed under Article 227 of the Constitution of India against
the Fair and Final order dated 27.06.2016 made in R.E.P.No.106 of 2015
in O.S.No.665 of 1988 on the file of the I Additional Sub-Court, Salem.
For Petitioners : Mr.L.Mouli
For Respondents : Mr.R.Nalliappan (for R6, R7 and R10)
No Appearance (for R2, R4, R5, R8, R9)
R1 & R3 - Died
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C.R.P.(NPD)No.1332 of 2017
ORDER
The civil revision petition arises against the dismissal of the
execution petition in REP.No.106 of 2015 in O.S.No.665 of 1988.
O.S.No.665 of 1988 was a suit for specific performance which was
decreed on 21.11.1994. The appeal therefrom also ended in dismissal in
A.S.No.903 of 1995 on the file of this Court on 23.11.2007.
2.The decree having been confirmed, the judgment creditor
executed a registered document assigning the decree in favour of the first
petitioner on 01.10.2014. On the strength of the said assignment, an
application was filed under Order 21 Rule 16 of the CPC and the same
was allowed without notice to the judgment debtors.
3.The applications having been allowed, the E.P. was taken on file
in REP.No.106 of 2015. The learned Judge dismissed the E.P. on the
ground that, at the time of considering the recognition of the civil revision
petitioner as the assignee of the decree, notice was not given to the
judgment debtors as required under Order 21 Rule 16 of the CPC.
4.I heard Mr.L.Mouli, learned counsel appearing for the petitioners
and Mr.R.Nalliappan, learned counsel appearing for the respondents 6, 7
and 10 and I have gone through the records.
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C.R.P.(NPD)No.1332 of 2017
5.As per Order 21 Rule 16 of the CPC, notice is mandatory to the
judgment debtors, because the judgment debtors cannot be called upon to
satisfy the decree twice. Once there is an assignment of the decree under
Order 21 Rule 16 read with Section 146 of the CPC, the assignee is
entitled to execute the decree. What has not been done is the procedural
requirement of sending a notice to the judgment debtors. For the said
purpose, the execution petition itself could not have been dismissed. The
Court should normally lean in favour of the judgment creditor. It could
have considered the fact that the first appeal had been disposed of in
23.11.2007 and the E.P. being limitation E.P, it could have retracted its
steps and issued notice to the judgment debtors under Order 21 Rule 16
of the CPC. That not having been done, to dismiss the execution petition
itself, is to hold that the procedural law will override the substantive
decree that has been obtained by the civil revision petitioner.
Consequently, I pass the following orders:
(i) the order passed in REP.No.106 of 2015 dated 27.06.2016 is
set aside.
(ii) the Court shall take up the application filed under Order 21
Rule 16 of the CPC and give an opportunity to the judgment creditor to
file an application and issue notice to the judgment debtor,
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C.R.P.(NPD)No.1332 of 2017
(iii) it shall issue notice to the judgment debtors, hear the parties
and thereafter decide on the merits of the application filed under Order 21
Rule 16 of the CPC and
(iv) if the Order 21 Rule 16 application is allowed, it shall take up
the execution petition and dispose of the same on merits and in
accordance with law.
6.With the above directions, this civil revision petition stands
allowed. No costs.
24.07.2023
Index:Yes/No (2/2)
Speaking order/Non-speaking order
Neutral Citation:Yes/No
vs
To
The I Additional Sub-Court,
Salem.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD)No.1332 of 2017
V. LAKSHMINARAYANAN,J.
vs
C.R.P.(NPD)No.1332 of 2017
24.07.2023
https://www.mhc.tn.gov.in/judis
