K.Kathirvelu vs D.Nagaraj
2023 Latest Caselaw 12472 Mad

                                                                         C.R.P.(NPD)No.4098 of 2015


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 14.09.2023

                                                          CORAM:

                        THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

                                                C.R.P.(NPD)No.4098 of 2015
                                                    and MP.No.1 of 2015
                     K.Kathirvelu                                                ... Petitioner
                                                            Vs.

                     D.Nagaraj                                                   ... Respondent

                     PRAYER: Civil Revision Petition is filed under Section 115 of the Code
                     of Civil Procedure, to set aside fair and decreetal order dated 17.08.2015
                     in E.A.No.4745 of 2014 in E.P.No.4625 of 2013 on the file of the IX
                     Assistant City Civil Court, Chennai and consequently dismiss
                     E.A.No.4745 of 2014.
                                       For Petitioner    : Mr.T.Saikrishnan

                                       For Respondent : Ms.Kausalya
                                                        for Mr.P.Sam Japa Singh

                                                          ORDER

This revision arises against the order passed in E.A.No.4745 of

2014 in E.P.No.4265 of 2013. The petitioners before me entered into a

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

memorandum of compromise on 28.11.2012. That was presented before

Lok Adalat conducted by the District Legal Services Authority at

Chennai. An award was passed on 17.12.2012. In terms of the settlement,

a memorandum of compromise was entered into on 28.11.2012. That is,

to say the compromise memo got the seal of approval and became a

decree of the Lok Adalat award dated 17.12.2012. This Lok Adalat award

was presented before the learned Judge dealing with the suit in

O.S.No.7927 of 2011. Recording the award passed by the Lok Adalat, the

suit was disposed of.

2.Since the respondent did not comply with the terms of the

compromise, a petition was filed for attachment and for sale of the

schedule mentioned property in terms of Order 21 Rule 54 of the Code of

Civil Procedure. This E.P. was taken on file as E.P.No.4625 of 2013. On

03.12.2013, the Court found that the judgment debtor had not complied

with the terms of the decree and had ordered attachment of the property.

The property was also attached on 03.12.2013. While the matter was

pending, the petitioner filed an application in E.A.No.4745 of 2014

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

stating that the Court should condone the delay of 258 days in setting

aside the exparte order passed in the Execution Petition.

3.A counter was filed to this application stating that the Execution

Petition was less than two years and therefore, the question of notice to

the judgment debtor does not arise. Apart from that, it was pointed out

that the respondent/judgment debtor is acting contrary to the

memorandum of compromise as well as the award of the Lok Adalat and

therefore, did not deserve any sympathy.

4.The sheet anchor of the petitioner's case is that he fell sick and

was unable to come before the Court for purpose of resisting the

Execution Petition. The learned trial Judge, not only went behind the

decree and held that the property is not the subject matter of the

Execution Petition, but also condoned the delay and raised the attachment

of the property.

5.I heard Mr.T.Saikrishnan, learned counsel appearing for the

petitioner and Ms.Kousalya, learned counsel for Mr.Sam Japa Singh,

learned counsel appearing for the respondent. I have carefully gone

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

through the records.

6.A perusal of the copy of the Lok Adalat award would go to show

that the defendant/judgment debtor had agreed to pay Rs.28,00,000/- to

plaintiffs 1 to 4 and a sum of Rs.55,00,000/- to the 5th plaintiff in full and

final settlement of their dues. In other words, it is a money decree. A

money decree can be put into execution by way of attachment of the

immovable property which belongs to the judgment debtor. It is hence

that an application was filed for attachment and sale in terms of Order 21

Rule 54 of the Code of Civil Procedure. The learned trial Judge had

missed out on the point that it is not necessary that decree holder must

proceed only against the property which is the subject matter of the

agreement, but can attach properties, which belong to the judgment

debtor for the satisfaction of the decree. This is what has been done in the

present case.

7.Apart from this fact, though the respondent has pleaded that he

was sick and unable to attend the Court, no evidence has been put forth

before the trial Court that the petitioner was suffering from any sickness.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

8.The Court below ought to have taken note of the fact that an

award had been passed as early as 2012 and unfortunately, the decree

holders have not seen even a single paise in terms of the award. A Lok

Adalat award deserves the same respect as a decree of a Civil Court.

9.Just like an Executing Court cannot go behind the decree passed

by the Civil Court, it is not open to the Executing Court to go behind the

decree passed in terms of a Lok Adalat award. The raising of the

attachment of the property though the prayer was for condoning the delay

under Order 21 Rule 106 of the CPC, is an erroneous exercise of

jurisdiction by the Executing Court.

10.Sufficient cause is sine qua non for the purpose of exercising

the jurisdiction under Order 21 Rule 106 of the CPC. The petitioner

having failed to substantiate the reason that he was sick and therefore,

unable to meet his Advocate to give instructions is not entitled to any

indulgence. Despite opportunities being afforded, he has failed to file any

records. I am not able to see sufficient cause given in terms of the petition

filed under E.A.No.4745 of 2014. The condition precedent being absent,

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

the petition ought to have been dismissed.

11.In the light of the above discussion, the order and decreetal

order in E.A.No.4745 of 2014 in E.P.No.4625 of 2013 is set aside. The

petition filed in E.A.No.4745 of 2014 will stand dismissed. This Civil

Revision Petition is allowed.

12.The decree being of the year 2012, the Executing Court is

requested to take up the matter and proceed on it with all expediency and

ensure that the decree holder sees the benefit of the decree on or before

31.03.2024. On the completion of the execution proceedings, the

Executing Court shall submit a report to this Court, in any event as stated

above before 31.03.2024. No costs. Consequently, connected

miscellaneous petition is closed.

14.09.2023 Index:Yes/No Speaking Order :Yes/No Neutral Citation:Yes/No vs

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

To

The IX Assistant City Civil Court, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.4098 of 2015

V.LAKSHMINARAYANAN,J.

vs

C.R.P.(NPD)No.4098 of 2015 and MP.No.1 of 2015

14.09.2023

https://www.mhc.tn.gov.in/judis