Madras High Court
Sp.Alagappan vs Krishnaveni on 3 March, 2023
2023/MHC/1373
C.R.P.(MD)No.1820 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.03.2023
CORAM
THE HON'BLE MRS.JUSTICE L.VICTORIA GOWRI
C.R.P.(MD)No.1820 of 2014
SP.Alagappan ... Petitioner
Vs.
1.Krishnaveni
2.L.Vijayalakshmi ... Respondents
PRAYER : Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure, to set aside fair and decreetal order dated 10.04.2014
in E.P.No.79 of 2013 in O.S.No.29 of 2009 on the file of the learned
Principal District Munsif cum Judicial Magistrate, Karaikudi.
For Petitioner : Mr.VR.Shanmuganathan
For R-1 : Mr.S.Manikandan
For R-2 : Dismissed
1/14
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
ORDER
This civil revision petition has been preferred by the decree holder
in O.S.No.29 of 2009 on the file of the Principal District Munsif cum
Judicial Magistrate, Karaikudi as against the dismissal order of the
execution petition in E.P.No.79 of 2013 in O.S.No.29 of 2009 dated
10.04.2014. For the sake of convenience the parties herein are arrayed as
in E.P.No.79 of 2013.
2. The revision petitioner is the decree holder in O.S.No.29 of
2009, which was filed for recovery of money to the tune of Rs.43,500/-
with 9% interest and the same was decreed in favour of the revision
petitioner. At the first instance, the revision petitioner filed an execution
petition in E.P.No.37 of 2011 seeking attachment of the house in which
the judgment debtor was residing. However, the judgment debtor filed a
counter stating that she has no title over the house and she is residing in
the said house as a tenant, which belongs to the Ariyakudi Arulmigu
Thiruvengamudaiyan Devasthanam and she is given with a part of land
for lease and hence the decree holder cannot attach the same. In view of
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
the counter filed by the judgment debtor, the execution petition was not
pressed by the decree holder. Thereafter, second execution petition, was
filed before the Principal District Munsif cum Judicial Magistrate,
Karaikudi in E.P.No.79 of 2013 wherein the revision petitioner prayed
that since the judgment debtor is not the owner of the land, the
superstructure built by the judgment debtor shall be attached. The
judgment debtor filed counter stating that the description of the property
ie. door number, survey number, street name etc., are not properly stated.
Hence, the execution petition is liable to be dismissed. On consideration
of the submissions, made by either parties, the trial Court dismissed the
execution petition vide order dated 10.04.2014, in which, it was observed
that the petitioner sought only to attach the roof of the building and the
petitioner failed to prove the ownership of the judgment debtor with
respect to the petition scheduled property. Hence, the present civil
revision petition came to be filed.
3. The learned counsel appearing for the petitioner submitted that
the petitioner filed execution petition to get the superstructure built by
the judgment debtor attached. He further took me into the various
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
grounds of the Revision Petition and sought to set aside the order passed
by the execution Court in E.P.No.79 of 2013.
4. Per contra, the learned counsel for the respondent/judgment
debtor submitted that the attachment sought for by the petitioner cannot
be effected in the execution proceedings and more over, the second
respondent, who is the daughter of the first respondent too passed away
and the first respondent is living in a house built in the land belonging to
Devasthanam and hence, there is no illegality or infirmity in the order
passed by the Court below and therefore, this civil revision petition is
liable to dismissed. The learned counsel for the respondent/judgment
debtor relied on a judgment passed by this Court in W.P.(MD)No.14428
of 2017 and the same is not applicable to the facts and circumstances of
this case.
5. Heard the learned counsel for the petitioner and the learned
counsel for the respondent and carefully perused the materials available
on record.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
6. It is seen that the petitioner is the decree holder and at the first
instance, he filed an execution petition in E.P.No.37 of 2011 and the
same was not pressed by the petitioner, after the filing of counter by the
respondent stating that the property belonged to Ariyakudi Arulmigu
Thiruvengamudaiyan Devasthanam and she is only a tenant. Thereafter,
the decree holder filed another execution petition in E.P.No.79 of 2013
for attaching the superstructure of the house built by the judgment
debtor. The judgment debtor has filed a counter stating that the details of
the property, which was sought to be attached, were not given properly
by the decree holder.
7. This Court is of the considered view that the judgment debtor is
wantonly avoiding the satisfaction of her debt to the decree holder,
without giving any workable solution, thereby letting the decree holder
in lurch allowing him to file execution petitions one after another. Even
though the respondent/judgment debtor is in penury, who is nearly 58
years old, she cannot absolve herself from her liability towards the
decree holder. The suit was decreed as early as 27.01.2010 observing
that the respondent/judgment debtor has to pay the decree holder a sum
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
of Rs.45,457.50/- with 9% interest per annum from the date of plaint till
the date of decree and thereafter, at 6% interest till date of realization.
8. Section 151 of the Code of Civil Procedure, 1908 equips the
execution Court with unfettered powers to make such orders as may be
necessary for the ends of justice or to prevent the abuse of process of the
Court. In exercise of the extraordinary powers under Section 151 of the
Code of Civil Procedure, the executing Court should contribute towards
the decree-holder realising the fruits of a decree in his favour from a
deceiving judgment-debtor. Here in this case, without denying her
liability towards the decree holder, the judgment-debtor kept defending
the Execution Petitions hyper technically by stating that the property
sought to be attached does not belong to her. The execution Court
without realising it's powers, with an elephant's dilemma had proceeded
to dismiss the said E.P.No.79 of 2013.
9. In execution proceeding, the Executing Court has to ascertain
the assets and income of the judgment-debtor to determine, whether the
judgment debtor has the means to satisfy the money decree. According to
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
the petitioner's Counsel in terms of Section 60(2) of the Code of Civil
Procedure, 1908 houses and other buildings with the materials and the
sites thereof and the lands immediately appurtenant thereto are liable to
attached and sold in execution of a decree. In support of his contention
that the right of occupation of a house is property both attachable and
saleable. He relied upon the decision of the Hon'ble Supreme Court
reported in 1975 (2) SCC 105 in the case of Ramesh Thimmatlal Shah
Vs. Harsakh Jadhavji Joshi wherein a similar issue was dealt with and
the relevant paragraph is extracted hereunder:
“24. The judgment-debtor has a valid decree against
him. Ordinarily he has to discharge his liability under the
decree. He can pay the decretal amount straightaway or
suffer his property to be attached and sold in execution of the
decree. As an honest debtor the liability under the decree
has to be discharged. Here the Society is not objecting to the
attachment and sale of the property, but the judgment-debtor
is. We have seen there is no absolute prohibition against
transfer of a right to occupation of the flat or even to transfer
a share. The auction-purchaser is presumed to know the
limitations under which he has purchased the right to occupy
the flat in Court auction. If ultimately the Society turns down
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
his application for membership (which of course cannot be
done except for valid reasons) it is up to him to take such
course of action as available under the law. Such a remote
contingency, per se, will not make the particular right of the
judgment-debtor in the flat non-attachable or non saleable.
25. It is contended by Mr.Chatterjee that Section 60,
Civil Procedure Code, does not specify that this species of
property is liable to attachment. The argument, however,
fails to take note of Section 60 being not exhaustive as such.
It refers also to any other saleable property, movable or
immovable, whether the same be held in the name of the
judgment-debtor or by another person on his behalf. We have
held that the right to occupation of a flat is property both
attachable and saleable. Specific non-inclusion of a
particular species of property under Section 60 is, therefore,
not of any consequence if it is saleable otherwise..................”
10. However, in that case the flat of the judgment-debtor was
owned by the Paresh Co-operative Housing Society, governed by the
Maharashtra Co-operative Societies Act, 1960. But in this case, the
judgment-debtor claims that the superstructure of her dwelling house is
situate in the land belonging to Ariyakudi Arulmigu
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
Thiruvenkamudaiyan Devasthanam. But she consciously refrained from
disclosing the details of the tenancy with respect to the property in which
she is in possession. Though she admits in her counter in E.P.No.37 of
2011, that she is a tenant, she did not disclose the details of tenancy with
the said Devasthanam. In such circumstances, the said Devasthanam is
also a necessary party to the Execution Proceedings. Precisely this Court
has come to a conclusion that the superstructure of the dwelling house of
judgment-debtor is property which is attachable and saleable in
execution proceedings. However this Court is of the considered view that
without impleading the Devasthanam concerned in Execution Petition
the judgment-debtor's superstructure may not be attached or brought to
sale.
11. Order XXI, Rule 41(2) of the Code of Civil Procedure gives
ample power to the trial Court to examine the judgment debtor as to his
property and the same is extracted hereunder:
“Where a decree for the payment of money has
remained unsatisfied for a period of thirty days, the Court
may, on the application of the decree-holder and without
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
prejudice to its power under sub-rule(1), by order require
the judgment-debtor or where the judgment-debtor is a
corporation, any officer thereof, to make an affidavit stating
the particulars of the assets of the judgment-debtor.”
12. The Hon'ble High Court of Delhi in M/s.Bandari Engineers
Builders Vs. M/s.Maharia Raj Joint Ventures and Others on
05.08.2020 has held that,
“8. If the judgment-debtor does not voluntarily satisfy
the decree/award, the decree-holder is compelled to initiate
the execution proceedings. If the decree-holder is aware of
the assets of the judgment-debtor, the Executing Court
attaches the assets at the very threshold of the execution
proceedings. The Executing Court thereafter initiates
proceedings for sale of the attached assets of the judgment-
debtor.
9. If the decree-holder is not aware of the complete
assets and income of the judgment-debtor, the Executing
Court directs the judgment-debtor to disclose his assets in
Form 16A of Appendix E under Order XXI Rule 41(2) of the
Code of Civil Procedure.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
10. Form 16A of Appendix E under Order XXI Rule
41(2) of the Code of Civil Procedure is not exhaustive to
ascertain all the assets and income of the judgment-debtor.
As a result, the execution proceedings keep on lingering at
the mercy of the judgment-debtor.”
which is why in Satyawati Vs. Rajinder Singh (2013) 9 SCC 491,
the Hon'ble Supreme Court quoted the Privy Council's judgment of 1872
that the difficulties of a litigant in India begin when he has obtained a
decree and observed that the position has not improved and the decree-
holders still face the same problems.
13. That apart, Article 227 confers on this Court the power of
Superintendence over the subordinate Courts. The primordial reason to
vest this Court with such wide power of superintendence is to do
substantial justice by undoing the difficulties faced by the litigants. In
view of the above, this Court is of the considered view that this matter
has to be remitted back to the execution Court, Karaikudi. Accordingly,
the matter is remitted back to the Principal District Munsif Court,
Kariakudi by issuing the following directions:
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
“(i)The Court below shall direct the judgment debtor to file an
affidavit by disclosing the complete details of her assets and income
along with the details of her bank account and detailed information as to
her tenancy with respect to the petition scheduled property as required
in Form 16A in the Order XXI, Rule 41(2) CPC.,
(ii) In case the tenancy rights of the judgment-debtor is found to
be absolute, the Revision Petitioner shall be directed to implead
Ariyakudi Arulmigu Thiruvenkamudaiyan Devasthanam as the third
respondent, and thereafter adjudicate the Execution Proceedings.
(iii) In case of any clog over the judgment debtor's tenancy rights
with respect to the petition scheduled property, then the revision
petitioner is at liberty to prefer a fresh execution petition before the
execution Court to arrest the judgment debtor.”
14. With the above directions, this civil revision petition stands
allowed and the order passed by the Principal District Munsif cum
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
Judicial Magistrate, Karaikudi in E.P.No.79 of 2013 dated 10.04.2014 is
set aside. No costs.
03.03.2023
NCC : Yes
Index : Yes
Internet : Yes
gns/BTR
To
1.The Principal District Munsif cum Judicial Magistrate,
Karaikudi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1820 of 2014
L.VICTORIA GOWRI, J.
gns/BTR
C.R.P.(MD)No.1820 of 2014
03.03.2023
https://www.mhc.tn.gov.in/judis
