Madras High Court
Thavasamy vs Pandyadurai on 5 October, 2023
CRP. No. 3552 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10. 2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
CRP No. 3552 of 2023
& CMP No. 22233 of 2023
Thavasamy
...Petitioner
Vs.
Pandyadurai
....Respondent
PRAYER : This Civil Revision Petition is filed under Section 115 of CPC,
to set aside the order dated 24.08.2023 passed in E.P No.27 of 2022 in O.S
No. 364 of 2018 on the file of Principal Sub Court, at Virudhachalam.
For Petitioner : Mr.R.Thirumoorthy
For Respondent :
1
https://www.mhc.tn.gov.in/judis
CRP. No. 3552 of 2023
ORDER
This petition has been filed to set aside the order dated 24.08.2023
passed in E.P No.27 of 2022 in O.S No. 364 of 2018 on the file of Principal
Sub Court, at Virudhachalam.
2. Heard the learned counsel for the petitioner.
3. The judgment debtor filed this petition. Admittedly, both the
petitioner and the respondent are in laws of the judgment debtor further
already there is a family dispute between his daughter and son-in-law.
Based on the promisory note recovery of money was claimed by the
respondent in O.S No. 364 of 2018 on the file of Sub Court, Virudhachalam,
the said suit was decreed on merits against which the revision petitioner
filed appeal before the District Court, Cuddalore in A.S No. 66 of 2023,
during the pendency of the said appeal to execute the decree the respondent
herein/plaintiff filed E.P No. 27 of 2022 in O.S NO. 364 of 2018 to attach
the salary of the judgment debtor/defendnant the said petition was objected
by the defendant stating that he had already preferred an appeal but the
execution Court made an observation that even appeal is pending but there
is no stay for the proceedings hence this Court is entitle to proceed with E.P
proceedings. Accordingly, allowed the E.P petition by attaching the salary
https://www.mhc.tn.gov.in/judis
CRP. No. 3552 of 2023
of the revision petitioner. When appeal is pending proper procedure to be
adopted but without following the proper procedure the executing Court
passed order as such is unsustainable. Challenging the said order the
petitioner filed this petition. Now, as on date as per the revision petitioner
the appeal was preferred against the decree. However, there is no stay order
was passed by the appellate Court, but is no reduction made before
attaching the salary by executing court. Therefore order passed by the Trial
court in E.P No. 27 of 2022 in O.S No. 364 of 2018 is clear abuse of process
of law.
4. The Trial court should have passed order under Section 60 of
CPC, to attach the salary by mentioning entire salary after deduction
portion of the amount to be attached, but on seeing the order entire salary
ordered to be attached as such is erroneous one as well as reason assigned
by the Court is not justifiable. Hence the order passed by the executing
Court in E.P No. 27 of 2022 in OS No. 364 of 2018 is hereby set aside.
5.The executing Court is directed to give opportunity to the
petitioner its submission in respect of attaching salary thereafter decide
the matter on merits as per manner known to law.
https://www.mhc.tn.gov.in/judis
CRP. No. 3552 of 2023
6. In result, this Civil Revision petition is allowed. No Cost.
Consequentially, connected miscellaneous petition is closed.
05.10.2023
pbl
https://www.mhc.tn.gov.in/judis
CRP. No. 3552 of 2023
T.V.THAMILSELVI,J.
Pbl
CRP No. 3552 of 2023
& CMP No. 22233 of 2023
05.10.2023
https://www.mhc.tn.gov.in/judis
