Madras High Court
B.Kirija vs N.Rajarathinam on 7 June, 2023
C.R.P.(MD) No.448 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD) No.448 of 2023
and C.M.P.(MD) No.2126 of 2023
B.Kirija ... Petitioner
Vs.
N.Rajarathinam ... Respondent
Civil Revision Petition filed under Section 115 of the Code of Civil
Procedure, 1908, to set aside the fair and decreetal order dated 04.01.2023
in E.A.No.1 of 2022 in E.P.No.7 of 2020 in O.S.No.148 of 2017 on the
file of the Subordinate Judge, Uthamapalayam.
For Petitioner : Mr.K.Guhan
For Respondent : M/s.Ajmal Association
for Mr.A.Arumugam
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order dated 04.01.2023 passed by the Subordinate Court,
Uthamapalayam in E.A.No.1 of 2022 in E.P.No.7 of 2020 in O.S.No.148
of 2017.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
2. By the impugned order dated 04.01.2023, the Subordinate Court,
Uthamapalayam has dismissed E.A.No.1 of 2022 filed by the petitioner to
permit the petitioner to pay the amount mentioned in E.P.No.7 of 2020 in
O.S.No.148 of 2017 as 10 equal installments.
3. The petitioner is the unsuccessful defendant in O.S.No.148 of
2017. The said suit was filed by the respondent to recover a sum of
Rs.6,00,000/- being the principal amount lent to the petitioner and further
the amount towards interest, in all, amounting to Rs.8,46,800/-. A
preliminary decree was passed on 01.02.2018 and final decree was passed
on 02.11.2019.
4. Pursuant to the final decree passed in the above suit, the
respondent filed E.P.No.7 of 2020 on 28.02.2020 to bring the property of
the petitioner to sale. In the said E.P. proceedings, the respondent has
stated that the petitioner was due for a sum of Rs.9,99,923/-, in all, as on
the date of filing of E.P. on 28.02.2020. The said E.P. was allowed on
21.04.2022 by ordering the sale of the properties.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
5. After E.P. was allowed, the petitioner filed E.A.No.1 of 2022 on
29.06.2022 undertaking to pay the decree amount in installments which
has been rejected by the Court below vide impugned order dated
04.01.2023. Aggrieved by the same, the petitioner is before this Court.
The relevant portion of the impugned order reads as under:-
(iii) This court sees that the Petitioner did not
pay any amount after 20.09.2021 and this petition
is filed to drag on the execution proceedings. The
Petitioner even during the pendency of this petition
did not pay any part amount to show his bonafide
intention to settle the EP amount. The Respondent
when reluctant to receive any part amount this
court cannot force him to receive the EP amount in
10 equal installments. This court finds no valid
and reasonable grounds to allow this petition.
(iv) In the result, this petition is dismissed.
6. The learned counsel for the petitioner submits that the petitioner
is a lady and is residing in the house property and that the petitioner will
discharge the outstanding due to the respondent. It is submitted that
further proceedings to bring the property to sale pursuant to the impugned
order dated 04.01.2023 in E.A.No.1 of 2022 may be kept in abeyance.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
7. The learned counsel for the petitioner further submits that at the
time of admission on 22.02.2023, this Court had directed the petitioner to
pay a sum of Rs.2,00,000/- which has been complied with. He further
submits that further time may be granted, so that, the petitioner will be
able to pay back the balance amount to the respondent/decree holder in
O.S.No.148 of 2017.
8. Per contra, the learned counsel for the respondent submits that
the impugned order is well reasoned and requires no interference. That
apart, it is submitted that I.A.No.1 of 2022 filed under Order XX1 Rule 89
of Code of Civil Procedure, 1908 was premature. Order XX1 Rule 89 of
Code of Civil Procedure, 1908 applies to a situation where the sale has
taken place. In this case, the petitioner's property has been brought to sale
in Execution Proceedings and the petitioner ought to have deposited
amount within the stipulated time therein.
9. That apart, even though the preliminary decree was passed on
01.02.2018 and final decree was passed on 02.01.2019, the petitioner has
paid a sum of Rs.20,000/- as on 20.09.2021 and a sum of Rs.2,00,000/-
only after the present Civil Revision Petition was filed pursuant to the
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
order of this Court on 22.02.2023. It is submitted that the amount was due
from 2014 and despite a lapse of 9 years, only Rs.2,20,000/- was paid by
the petitioner and therefore, there is enormous delay on the part of the
petitioner and thus, the present Civil Revision Petition is liable to be
dismissed.
10. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
11. The petitioner has no doubt been negligent and careless in not
discharging the loan liability to the respondent (decree holder). The
amounts were borrowed as early as 2014 as is evident from a reading of
the Judgment and Decree passed in O.S.No.148 of 2017. Even though
already 9 years have lapsed, only a sum of Rs.2,20,000/- has been paid by
the petitioner towards outstanding due so far.
12. Considering the fact that the property involved is a residential
property and considering the fact that the petitioner is willing to discharge
the outstanding due in terms of Judgment and Decree passed in O.S.No.
148 of 2017, this Court is inclined to balance the interest of the parties by
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
directing the petitioner to pay a sum of Rs.1,50,000/- within period of 30
days from today and the balance outstanding due as per E.P.No.7 of 2020
in 6 Equated Monthly Installments (EMIs.).
13. In case the petitioner fails to pay such amount within the
respective period, the respondent is at liberty to bring the property to sale.
14. This Civil Revision Petition stands disposed of with the above
observations. No cost. Consequently connected Miscellaneous Petition is
closed.
07.06.2023
NCC : Yes/No
Internet: Yes/No
Index: Yes/ No
jen
To
The Subordinate Court, Uthamapalayam.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD) No.448 of 2023
C.SARAVANAN, J.
jen
C.R.P.(MD) No.448 of 2023
and C.M.P.(MD) No.2126 of 2023
07.06.2023
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https://www.mhc.tn.gov.in/judis
