Madras High Court
S.Balachandar vs N.Palanisamy on 1 July, 2024
C.R.P.(NPD)No.1838 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2024
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(NPD)No.1838 of 2023
and
C.M.P.No.11793 of 2023
S.Balachandar .. Petitioner
Vs.
N.Palanisamy .. Respondent
Prayer : The Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order, dated
20.02.2023, passed in R.E.A.No.10 of 2022 in R.E.P.No.40 of 2018 in
O.S.No.232 of 2004 on the file of the Sessions Court (Fast Track Mahila) at
Namakkal.
For Petitioner : Mr.E.K.Kumaresan
For Respondent : Ms.R.A.Monalisha
for Mr.R.Marudhachalamurthy
ORDER
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The present Civil Revision Petition arises against an order passed by
the learned District and Sessions Judge - cum - Fast Track Mahila Judge at
Namakkal in R.E.A.No.10 of 2022 in R.E.P.No.40 of 2018 in O.S.No.232
of 2004.
2. O.S.No.232 of 2004 is a suit for recovery of money filed by the
respondent herein as against the civil revision petitioner.
3. The claim was to pay a sum of Rs.17,78,000/- together with an
interest at the rate of 9 % per annum. The civil revision petitioner had taken
a loan for a sum of Rs.14,00,000/- from the respondent and as he failed to
repay the same, the respondent was constrained to approach the Court for
the aforesaid relief. The suit came to be decreed on 30.06.2011 against
which a regular appeal was preferred before this Court in A.S.No.594 of
2011. The said appeal was dismissed confirming the judgment and decree
passed by the trial Court on 06.01.2021.
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4. In order to execute the decree passed by the learned Principal
District and Sessions Judge at Namakkal, the respondent herein has initiated
R.E.P.No.40 of 2018 for attachment and sale of the immovable property of
the civil revision petitioner. The said execution petition was ordered.
5. In the meantime, an application came to be filed in E.A.No.10 of
2022 under Section 47 of the Code of Civil Procedure seeking an order that
the civil revision petitioner is liable to pay only a sum of Rs.75,399/- in order
to discharge the debt involved. The said application was dismissed as per the
order dated 20.02.2023. Challenging the same, the present Civil Revision
Petition has been presented before this Court.
6. Heard Mr.E.K.Kumaresan, appearing on behalf of the petitioner
and Ms.R.A.Monalisha, for Mr.R.Marudhachalamurthy, appearing on
behalf of the respondent.
7. Mr.E.K.Kumaresan would submit that when the appeal came up
before this Court, he had paid a sum of Rs.14,00,000/- directly to the
respondent and instead of adjusting this amount towards the principal and
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thereby reducing the interest component, the decree holder had adjusted the
amount towards cost and interest, and thereafter, he claimed a further sum
of Rs.10,55,270/-. According to Mr.E.K.Kumaresan, he had been paying the
amounts pending the execution petition, and all that he is liable to pay today
is only a sum of Rs.75,399/-.
8. Ms.R.A.Monalisha representing the decree holder would state that
unless and until the decree states otherwise or where there is a contract to
the contrary, the decree holder is entitled to adjust the amounts towards the
cost first followed by the interest and then, towards the principal. She would
state that there is no illegality committed by the learned Judge in dismissing
the petition under Section 47 of the Code of Civil Procedure, and would
therefore seeks confirmation of the order of the executing Court.
9. The position of law has been settled by the Constitution Bench of
the Supreme Court in Gurpreet Singh vs. Union of India [(2006) 8 SCC
457]. Interpreting Order XXI Rule 1 of the Code of Civil Procedure, the
Court had held, in case, there is any short fall in the payment of the decree
amount, the decree holder is entitled to adjust the said amount towards the
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cost of the litigation first followed by the interest and only thereafter,
towards the principal. This view taken by the Constitution Bench has been
followed in V.Kala Bharathi and Others vs. Oriental Insurance Company
Limited, Branch Chitoor [(2014) 5 SCC 577].
10. Therefore, the position of law having been declared clearly by the
Constitution Bench and affirmed subsequently, I necessarily have to hold
that the plea of the judgment debtor is untenable. The amounts paid by him
directly pursuant to the order of this Court in A.S.No.594 of 2011 should be
adjusted towards the cost and interest first and only thereafter, if both the
components have been exhausted, it can be adjusted towards the principal.
11. Having come to this conclusion, I cannot take any exception to the
order passed by the learned trial Judge. Accordingly, the Civil Revision
Petition stands dismissed.
12. At this stage, Mr.E.K.Kumaresan would submit that the trial
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Court has proceeded with the execution, and today, it is at the stage of sale
proclamation of immovable property that the judgment debtor had
purchased from the decree holder. He would state that his client will
discharge the entire liability on or before 31.10.2024, and would seek
appropriate directions.
13. This submission of Mr.E.K.Kumareasan was vehemently objected
to by Ms.R.A.Monalisha who would state that the suit is of the year 2005,
and that her client has been litigating for more than two decades in order to
realize the amounts paid by him.
14. Taking into consideration the fact that the judgment debtor has
come forward with an expression of interest to settle the entire matter within
a short period of time, I am inclined to grant time for him to pay the amount,
and save his property.
15. Accordingly, the judgment debtor shall clear the entire decree
amount of Rs.10,55,270/- together with interest till the date of payment by
31.10.2024. The executing Court is requested to adjourn the proceedings to
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enable the judgment debtor to clear the entire amount. In case, the judgment
debtor does not pay the said amount on or before 31.10.2024, the decree
holder is free to proceed with the execution. In such an eventuality, the
executing Court shall give due consideration to the time granted by this
Court as well as the fact that despite an opportunity granted to the judgment
debtor, he has not cleared the amount and to the fact that the proceedings
are pending for more than two decades, and it shall proceed with execution
with all expedition as the case would require.
16. Accordingly, the Civil Revision Petition stands dismissed with the
above observation. The connected Civil Miscellaneous Petition is closed.
01.07.2024
mkn2
Index:Yes/No
Speaking Order :Yes/No
Neutral Citation:Yes/No
V. LAKSHMINARAYANAN, J.
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mkn2
To
The Sessions Court (Fast Track Mahila),
Namakkal
and
01.07.2024
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