Madras High Court
Sonali vs C.Balaji on 8 June, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.1857 of 2023
and
CMP.No.11915 of 2023
Sonali ... Petitioner
Versus
C.Balaji ... Respondent
PRAYER : Civil Revision Petitions filed under Article 227 of Constitution
of India, praying to set aside the petition and order of the learned XII Judge,
Court of small causes, in E.P No. 391 of 2023 in RCOP No. 95 of 2008
dated 03.06.2023, reserving the EP for orders without affording an
opportunity to the petitioner to file a counter on the very same day when the
case was posted only for filing of counter and accordingly pass an order
affording the petitioner an opportunity to file its counter against the E.P No.
391 of 2023 pending on the file of the learned XII Judge while also
directing the learned XII Judge, Court of Small Causes to hear the petitioner
before passing any orders in the E.P NO. 391 of 2023.
For Petitioner : Mrs.Chitra Sampath, Senior counsel
for Varun Srinivasan
ORDER
This petition has been filed to set aside order of the learned XII
Judge, Court of small causes, in E.P No. 391 of 2023 in RCOP No. 95 of
2008 dated 03.06.2023.
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2. The learned counsel for the petitioner/judgment debtor would
submit that before the Execution Court, the petitioner/judgment debtor filed
an application under Section 47 of CPC. challenging the maintainability of
the execution petition mainly on the ground of jurisdiction as well as partial
eviction. The said petition under Section 47 of CPC was given
SR.No.20332 of 2023 and the same is yet to be numbered.
3. Learned counsel for the petitioner would submit that before
numbering the application filed under Section 47 of CPC which raised an
issue of maintainability, the learned counsel for the tenant had argued and
the same was reserved for orders and posted tomorrow i.e., on 09.06.2023.
4. On seeing the case status, the petitioner came to know that in the
main execution petition in EP.No.391 of 2023, the trial Judge without giving
opportunity to file their objection erroneously ordered in the execution
petition as if counter not filed. Aggrieved by the same, the present petition
has been filed.
5. The learned counsel for the petitioner would argue that in the
execution petition he has not been given opportunity and the executing
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court has erroneously recorded as counter not filed which it would clearly
show that there is a clear violation of natural justice. Furthermore, when the
application filed by him under Section 47 of CPC also been pending and
awaiting order, without pronouncing orders thereon, the executing Court
ought not to have passed any order in main execution petition. Hence, she
prays to direct the executing court to dispose of the application filed under
Section 47 of CPC before passing order in main execution petition.
6. This court finds justification in the submission made by the
learned counsel for the petitioner. The daily status of executing Court in
respect of the subject matter reads as follows.
“ E.A.Sr.No.20332/23. Heard Maintainability. For Orders call on
09.06.2023. EP.391/2023. Petition u/s 47 of CPC filed.
EA.Sr.No.20332/2023 is pending. For orders. Counsel for petitioner present.
Respondent present. Counter not filed. Hence closed. Heard counsel for
petitioner. For orders call on 09.06.2023”.
Thus, it reveals that without giving opportunity to the judgment debtor to
file the counter objection in main execution petition, the executing court
closed the enquiry in the main petition by recording as counter not filed is
totally unfair on the part of the executing court. Therefore, the Executing
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Court is directed to re-open the main EP and give an opportunity to the
petitioner/judgment debtor to file their objections, if any. After disposal of
the application filed under Section 47 of CPC i.e., after passing orders
thereon, executing court shall hear the main EP. No orders shall be passed
in the main execution petition until the disposal of the application filed
under Section 47 of CPC. With the above directions, this Civil Revision
Petition is disposed of. No costs. Consequently, connected Civil
Miscellaneous Petition is closed, if any.
08.06.2023
Vv
Note: Issue Order Copy on 08.06.2023
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T.V.THAMILSELVI, J.
Vv
C.R.P.No.1857 of 2023
and
CMP.No.11915 of 2023
08.06.2023
https://www.mhc.tn.gov.in/judis
