Madras High Court
P.Jeeva vs M.Somundeswari on 5 October, 2023
C.R.P. No. 3610 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.10.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 3610 of 2023
and
C.M.P.No. 22601 of 2023
1. P.Jeeva,
W/o. late Pal Patricks
2. Mrs.J.Princee,
W/o. Jawahar ... Petitioners
Versus
M.Somundeswari,
W/o. P.Mahalingam ... Respondent
PRAYER : Civil Revision Petition filed under Art. 227 of Constitution of
India, praying to set aside the judgment and decree in E.P.No.3811 of 2022
dated 07.07.2023 passed by the learned IX Asst. City Civil Court at
Chennai.
For Petitioner : Mr.K.Balachandar
1/5
https://www.mhc.tn.gov.in/judis
C.R.P. No. 3610 of 2023
ORDER
Challenging the impugned order passed in E.P.No.3811 of 2022 by
the learned IX Asst. City Civil Court, Chennai, the Judgment
Debtors/defendants preferred the present Civil Revision Petition.
2. Since the relief is claimed against the trial judge, notice to the
respondent is dispensed with.
3. The learned counsel for Revision Petitioners would submit that
before the trial court, proper notice was not served on to the 1 st respondent
and though she remain exparte, against her and another defendant, the trial
court passed an exparte decree of money claim with interest in favour of
respondent/plaintiff herein. To execute the same, she filed an Execution
Petition in E.P.No. 3811 of 2022 for attachment of salary to recover the suit
claim. Thereafter, she filed a petition to set aside the exparte decree, but the
Executing Court passed an order as if the suit was contested by the
defendants, but it is not a contested decree and it is only an exparte decree,
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C.R.P. No. 3610 of 2023
thereby without giving opportunity to her, her salary was ordered to be
attached. In fact, already her property was in possession and enjoyment of
plaintiff, which was suppressed by her in the trial proceedings. Hence, he
prayed to set aside the operation of the decree.
4. On perusal of records, it reveals that the suit in O.S.No. 2650 of
2017 was filed by the plaintiff for recovery of money against two
defendants. Both the defendants remain exparte. Based on the exparte
evidence, the decree was passed in favour of plaintiff. As pointed out by the
Revision Petitioners' counsel, it is not a decree on contest, but on perusal of
order passed by the Executing Court in E.P.No. 2811 of 2022, the learned
trial judge made an observation as follows :-
“The JD had appeared before trial court through her counsel.
Hence, the decree is an contested decree.”
But, as discussed above, it is only an exparte decree and not a contested
decree. However, on perusal of records, without application of mind, the trial
judge passed the impugned order and the same is liable to be set aside.
Accordingly, this Civil Revision Petition is allowed and the findings of the
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C.R.P. No. 3610 of 2023
trial judge in E.P.No.3811 of 2022 is set aside and the Executing Court is
directed to proceed with Execution Petition by giving opportunity to the
Judgment Debtors as per manner known to law. No costs. Consequently,
connected Civil Miscellaneous Petition is closed.
05.10.2023
Index : Yes/No
Internet: Yes/No
Speaking/Non Speaking order
rpp
N.B. :- Issue order copy on 06.10.2023
To
IX Asst. Judge,
City Civil Court,
Chennai.
https://www.mhc.tn.gov.in/judis
C.R.P. No. 3610 of 2023
T.V.THAMILSELVI, J.
rpp
C.R.P.No. 3610 of 2023
05.10.2023
https://www.mhc.tn.gov.in/judis
