J.Sudha vs C.K.Selvasekaran
2023 Latest Caselaw 3277 Mad

Citation : 2023 Latest Caselaw 3277 Mad
Judgement Date : 28 March, 2023

Madras High Court

J.Sudha vs C.K.Selvasekaran on 28 March, 2023

                                                                               C.R.P.No.3188 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 28.03.2023

                                         CORAM : JUSTICE N.SESHASAYEE

                                                 C.R.P.No.3188 of 2019
                                               and CMP.No.20768 of 2019

                     1.J.Sudha
                     2.R.Suguna                                   ... Petitioners /
                                                                          Judgment Debtors 2 & 3


                                                           Vs

                     C.K.Selvasekaran                             .. Respondent / Decree Holder


                     Prayer : Civil Revision Petition filed under Article 227 of the Constitution
                     of India praying to set aside the order and decretal order dated 28.09.2018
                     made in E.A.No.137 of 2017 in E.P.No.16 of 2008 on the file of Principal
                     District Court at Chengalpattu.


                                    For Petitioners    : Mr.V.Karnan
                                    For Respondents    : Mr.T.S.Baskaran


                                                        ORDER

This revision arises out of an order challenging E.A.No.137 of 2017 in

E.P.No.16 of 2008 dismissing the defendants/judgment debtors' application

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for setting aside the exparte order passed against them in the said E.P.

2. The backdrop facts leading to this revision may now be stated :

● The suit in O.S.No.243 of 2006 was laid for specific enforcement of a

sale agreement, and this was decreed exparte on 11.04.2007.

Subsequently, the decree holder (D.H) laid E.P.No.16/2008 for

executing the said exparte decree. The notice was served on the

judgment debtors (JDs), but they did not appear. Thereafter, as

required by the Execution Court, the decree holder applied for the

Encumbrance Certificate pertaining to the property and found that the

property in question was sold subsequent to the decree, by an alleged

Power of Attorney of the JDs to some third parties.

● This prompted the decree holder to institute a suit in

O.S.No.521/2009 to declare that the sale deed executed on behalf of

JDs by their alleged Power of Attorney to the third parties as null and

void.

● In that suit, the present JDs had disputed the sale agreement in favour

of the decree holder, but still admitted the passing of the preliminary

decree on 11.04.2007. Ultimately after due trial, on 26.04.2018, the

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suit was decreed and no further appeal was preferred.

● Thereafter, after the disposal of O.S.No.521/2009, the JDs have taken

out two applications, one for setting aside the exparte decree in

O.S.No.243/2008 along with an application to condone the delay in

filing the same. The latter mentioned application is I.A.No.21/2008.

After due enquiry, the trial Court dismissed this application and the

same came to be confirmed by this Court in CRP.No.3582/2018, and

this has become final.

● The other application taken out by JDs is the one involved in this

revision in E.A.No.137/2017. This is filed for setting aside the order

of the Execution Court setting the JDs' exparte in E.P.No.16/2018.

This was dismissed by the Execution Court and it is now under

challenge.

3. The learned counsel appearing for the revision petitioners/JDs submitted

that :

(a) There are two Power of Attorney documents alleged to have been

executed by JDs, but both are forged and fabricated. One such Power

of Attorney holder, the first of the two, had executed a sale agreement

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in favour of the decree holder / respondent, on the strength of which

he had obtained the exparte decree. The other Power of Attorney is

the one which is the subject matter in O.S.No.521/2009.

(b) So far as the revision petitioners are concerned, whenever they

receive the Court notices, they used to entrust the same with the first

defendant's husband, and they were under a bonafide impression that

the suits have been prosecuted diligently. It is the negligence of the

husband of the first defendant that has cost them the right in the suit.

4. If the statement made by the learned counsel for the revision petitioner

were to be accepted, it can only evoke sympathy, but nothing beyond that.

Here is a situation where the Court has passed a decree, and the attempt of

the present revision petitioners to have the delay condoned in filing an

application under Order IX Rule 13, has been dismissed, and has been

confirmed by this Court in CRP.No.3582/2018 and has since become final.

In a scenario such as this to entertain the plea such as this in an execution

petition, would only imply that this Court might have to go behind the

decree that was passed, which is impermissible in procedure.

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5. The learned counsel for the revision petitioner now produced another

document dated 14.09.2020. This is the proceedings of the District