Madras High Court
S.Neelavathi vs M.K.R.Theivanayagam Pillai (Died) on 19 August, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
C.R.P(MD)No.376 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.08.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P(MD)No.376 of 2022
T.Loganathan (Died)
1.S.Neelavathi
2.Bhavani
3.Ambigapathi
4.Jeyalakshmi ... Petitioners / Petitioners /
Legal heirs of Plaintiff,
deceased T.Loganathan
Vs.
1.M.K.R.Theivanayagam Pillai (Died)
2.T.Bose (Died)
3.T.Ramanathan (Died)
4.T.Amirtham (Died)
5.Radhakrishnan
6.Vijayaragavan
1/10
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C.R.P(MD)No.376 of 2022
7.Elavarasi
8.J.Gomathi
9.M.Tamilselvi
10.Padmavathi
(R.1 to R.4 were died and R.5 to R.10
were impleaded as LRs of the deceased
3rd respondent as per the order of this
Court dated 25.07.2024)
11.Neela
12.Poornavadivu
13.Sivaprakasam
14.Nirmaladevi
15.Gopinath
16.Rajapandian
17.Rajendra Suriya Prasad
18.Uma Maheshwari
(R.11 to R.18 were suo motu impleaded as
LRs of the deceased 4th respondent as per the
order of the Court dated 05.08.2024) ...Respondents
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the petition and order (docket order)
made in I.A.No.31 of 2022 in O.S.No.125 of 1976 dated 16.02.2022 on
the file of the Principal Sub Judge, Madurai.
2/10
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C.R.P(MD)No.376 of 2022
For Petitioners : Mr.H.Arumugam
For Respondents : Mr.V.Meenakshi Sundaram
for Mrs.K.R.Shiva Shankari
for R.5 to R.7 & R.10
Mr.V.Meenakshi Sundaram
for Mr.K.Muthu Malai for R.8 & R.9
Mr.S.Kumar
for R.11, R.12, R.14 to R.18
R.1 to R.4 & R.13 - Died
ORDER
Heard both sides.
2.One T.Loganathan filed O.S.No.125 of 1976 on the file of
Principal Sub Court, Madurai for partition and for accounting.
Preliminary decree was passed on 30.03.1981. Final decree came to be
passed on 04.09.1992. As per the final decree, suit item 10 of 'A'
schedule was allotted in favour of plaintiff on payment of a sum of Rs.
11,38,500/- as owelty. Thiru.T.Loganathan passed away on 15.11.2003.
The legal heirs of Thiru.T.Loganathan filed I.A.No.31 of 2022 for
depositing the owelty amount together with interest at the rate of 6% per
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annum. The Court below issued notice in the Interlocutory Application.
Challenging the said docket order, the Civil Revision Petition came to be
filed.
3.The reason for allowing the Civil Revision Petition at the
admission stage was because the learned Judge took the view that for
filing lodgment schedule for payment of amount as per final decree, no
notice is required to be issued. The Court below was directed to issue
lodgment schedule. The said order was subsequently recalled at the
instance of the respondents 5 to 10.
4.The learned counsel for the revision petitioners reiterated all the
contentions set out in the memorandum of grounds of revision. He relied
on the decisions reported in a) ILR 1919 (42) Mad 576 – Ramaraya
Shanbogue -vs- Sherbott Venkataramanayya b) AIR 1995 SC 1572 –
Mathunni Mathai -vs- Hindustan Organic Chemicals Limited and
another c) AIR 1943 Mad 334 – South Indian Railway Co., Ltd -vs-
M.C.Mayilvahanan in support of this contention that the only purpose of
issuing notice is to arrest the running of interest. According to him,
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issuance of notice is not necessary. The learned counsel took me through
Order XXI Rule 1 of CPC and contended that the impugned docket order
deserves to be set aside.
5.The learned counsel for the contesting respondents (respondents
5 to 10) submitted that T.Ramanthan has also passed away in the year
2007 and that the respondents 5 to 10 ought to have been shown as the
respondents in I.A.No.31 of 2022. He submitted that the Court below
rightly issued notice and that interference is not warranted.
6.The learned counsel for the respondents 11, 12, 14 to 18 submits
that the 13th respondent is also no more.
7.I carefully considered the rival contentions and went through the
materials on record.
8.This revision petition rests on the premise that the judgment and
decree dated 04.09.1992 made in I.A.No.851 of 1981 (final decree) has
become final.
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9.The learned counsel for the contesting respondents points out
that the final decree was questioned by filing A.S.No.304 of 1996 and
that it suffered dismissal for non-prosecution on 01.12.2016 and that
steps are being taken to have the first appeal restored. As on date, the
factual position is that there is no challenge to the final decree. Be that
as it may, it is submitted that on account of non-deposit of non-judicial
stamp papers, final decree is yet to be drafted. Order XXI Rule 1 reads
as follows:
“1. Modes of paying money under decree.—
(1)All money, payable under a decree shall be paid as
follows, namely:—
(a)by deposit into the court whose duty it is to execute the
decree, or sent to that Court by postal money order or
through a bank; or
(b)out of Court, to the decree-holder by postal money
order or through a bank or by any other mode wherein
payment is evidenced in writing; or
(c)otherwise, as the Court which made the decree, directs.
(2)Where any payments is made under clause (a) or
clause (c) of sub-rule (1), the judgment-debtor shall give
notice thereof to the decree-holder either through the
Court or directly to him by registered post,
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acknowledgment due. (3)Where money is paid by postal
money order or through a bank under clause (a) or clause
(b) of sub-rule (1), the money order or payment through
bank, as the case may be, shall accurately state the
following particulars, namely:— (a)the number of the
original suit;
(b)the names of the parties or where there are more
than two plaintiffs or more than two defendants, as the
case may be, the names of the first two plaintiffs and the
first two defendants;
(c)how the money remitted is to be adjusted, that is
to say, whether it is towards the principal,interest or costs;
(d)the number of the execution case of the Court,
where such case is pending; and
(e)the name and address of the payer.
(4)On any amount paid under clause (a) or clause (c)
of sub-rule (1), interest, if any, shall cease to run from the
date of service of the notice referred to in sub-rule (2).
(5)On any amount paid under clause (b) of sub-rule
(1), interest, if any, shall cease to run from the date of such
payment:
Provided that, where the decree-holder refuses to
aceept the postal money order or payment through a bank,
interest shall cease to run from the date on which the
money was tendered to him, or where he avoids
acceptance of the postal money order or payment through
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bank, interest shall cease to run from the date on which the
money would have been tendered to him in the ordinary
course of business of the postal authorities or the bank, as
the case may be.”
The decisions relied on by the learned counsel for the revision petitioners
is on the running of interest. In this Civil Revision Petition, I am
concerned with the correctness of the docket order passed by the Court
below. The question that calls for consideration is whether the Court
below erred in issuing notice in the application seeking issuance of
lodgment schedule. Thiru.T.Loganathan had been called upon to pay a
certain owelty amount in the year 1992. He was obliged to pay the same
under the aforesaid final decree. Sub Rule 2 of Order XXI Rule 1 states
that where any payment is made under a decree, the judgment debtor
shall give notice thereof to the decree holder either through the Court or
directly through registered post with acknowledgment due. In this case, I
am not concerned with the consequence of giving or non-giving of
notice. Giving notice will arrest running of interest. When the statutory
provision mandates that the judgment debtor shall give notice through
the Court, I have to necessarily conclude that Court below
merely acted in terms of the aforesaid sub-rule. I endorse the approach
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adopted by the Court below. Since the second defendant
Thiru.Ramanathan is no more and his legal heirs have come on record in
the Civil Revision Petition, the petitioners are directed to file amendment
petition in I.A.No.31 of 2022. The Court below shall permit such an
amendment to be made. Interlocutory Application will be taken up for
enquiry on 09.09.2024. The respondents 5 to 10 shall appear before the
Court below in person or through counsel on the said date.
11.This Civil Revision Petition stands dismissed. There shall be
no order as to costs.
19.08.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
MGA
To
The Principal Sub Judge, Madurai.
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G.R.SWAMINATHAN, J.
MGA
19.08.2024
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