Madras High Court
Thiruvaadhurai Trust vs Parvathi ... 1St on 3 July, 2024
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
C.R.P.(PD)(MD)No.2320 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.R.P.(PD)(MD)No.2320 of 2023
and
C.M.P.(MD)No.11926 of 2023
Thiruvaadhurai Trust
Through one of its Trustee
Mariselvam ... Petitioner/Petitioner/Petitioner/
3rd Party / 3rd Party
vs.
1.Parvathi ... 1st Respondent/ 1st Respondent/
1st Respondent/Petitioner/Plaintiff
2.M.Prabhakaran ... 2nd Respondent/ 2nd Respondent/
2nd Respondent/2nd Respondent/2nd Defendant
Prayer:- Civil Revision Petitions filed under Section 115 of
C.P.C., against the Fair and Decreetal order dated 05.08.2023 passed in
E.A.No.11 of 2023 in E.A.No.5 of 2020 in E.P.No.126 of 2013 in O.S.No.
79 of 2007 on the file of the learned Sub Court, Tirunelveli.
For Petitioner : Mr.S.Velrajan
For R1 : Mr.V.Meenakshi Sundaram
For R2 : No Appearance
1/6
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.2320 of 2023
ORDER
The Civil Revision Petition is filed to set aside the Fair and
Decreetal order dated 05.08.2023 passed in E.A.No.11 of 2023 in E.A.No.
5 of 2020 in E.P.No.126 of 2013 in O.S.No.79 of 2007 on the file of the
learned Sub Judge, Tirunelveli.
2.In the said E.A., the petitioner herein had prayed for recalling
R.W.1 for further cross examinaton. The execution petition is filed for
executing the decree in O.S.No.79 of 2007, for which, the above petition in
E.A.No.5 of 2020 has been filed by the petitioner Trust, who is a third
party to the proceedings, claiming that the subject matter property belongs
to the Trust for the purpose of conducting the 'Kattalai' and collusively the
decree has been obtained between the original decree holder and the
judgment debtor. The same is duly resisted by the decree holder. As a
matter of fact, it can be seen that questions regarding the 'Kattalai' as well
as the title has been put in the cross examination of the witness.
3.In that view of the matter, Mr.V.Meenakshi Sundaram, learned
counsel for the first respondent would submit that when they have
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C.R.P.(PD)(MD)No.2320 of 2023
comprehensively cross examined on all aspects, the trial Court shall have
the right to refuse the relief prayed for by the petitioner.
4.On consideration of the said submissions, in the over all facts
and circumstances of the case, it is seen that the petitioner is a Trust and it
is contending that the property is devised for the purpose of performing the
'Kattalai'. It is now stated that certain other information were also obtained
regarding the same and therefore, one more opportunity is pleaded. When
the case itself is by way of a claim petition, in the execution petition, there
is nothing wrong in granting one more opportunity to the petitioner.
However, if any questions were not asked, it was only the lapse on the part
of the petitioner and therefore, for the hardship which is now caused to
R.W.1, the petitioner can be put to terms. Therefore, the Civil Revision
Petition is allowed on payment of cost of Rs.5,000/-. This apart in the next
hearing, if R.W.1 is present, the petitioner trust shall cross examine on the
same day and complete the proceedings.
5.In view thereof, the Civil Revision Petition is allowed on the
following terms:
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C.R.P.(PD)(MD)No.2320 of 2023
(i) The order of the learned Sub Judge, Tirunelveli, dated
05.08.2023 in E.A.No.11 of 2023 in E.A.No.5 of 2020 in E.P.No.
126 of 2013 in O.S.No.79 of 2007 shall stand set aside and
consequently, all the applications are allowed on condition that the
petitioner pay a cost of Rs.5,000/- to the first respondent on or
before 19.07.2024;
(ii) The cost can be paid either to the learned counsel
appearing on behalf of the first respondent herein before this Court
or to the learned counsel appearing before the trial Court or to the
first respondent/decree holder herself directly and a memo to be
filed before the trial Court on or before 22.07.2024;
(iii) If such memo is filed, the Civil Revision Petition is
deemed to be allowed and on the next hearing on 25.07.2024, R.W.1
shall be present and the petitioner shall cross examine her on the
same day;
(iv) If the cost memo is not filed, the Civil Revision
Petition shall be treated as dismissed and the trial Court shall
proceed with the case further;
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C.R.P.(PD)(MD)No.2320 of 2023
(v) Since the matter arises out of a claim petition in view
of the execution stage, the trial Court is requested to take up the
matter for disposal, expeditiously, in any event not later than three
months from the date of receipt of a copy of this order;
(vi) No costs. Consequently, connected miscellaneous
petition is closed.
03.07.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sji
To
The Sub Court, Tirunelveli.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.2320 of 2023
D.BHARATHA CHAKRAVARTHY, J.
sji
C.R.P.(PD)(MD)No.2320 of 2023
03.07.2024
https://www.mhc.tn.gov.in/judis
