Milton Ducless vs S.Sivakumar
2024 Latest Caselaw 18813 Mad

Citation : 2024 Latest Caselaw 18813 Mad
Judgement Date : 25 September, 2024

Madras High Court

Milton Ducless vs S.Sivakumar on 25 September, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                    C.R.P.No.3867 of 2024




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 25.09.2024

                                                       CORAM :

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                               C.R.P.No.3867 of 2024
                                             and C.M.P.No.21243 of 2024
                Milton Ducless                                                    ... Petitioner
                                                           Vs
                S.Sivakumar                                                       ... Respondent


                PRAYER : Civil Revision Petition filed under Section 115 of the Civil Procedure
                Code, pleased to set aside the docket order dated 04.03.2024 made in
                E.A.C.F.R.No.740 of 2024 in E.P.No.07 of 2019 in O.S.No.419 of 1992 on the
                file of the Principal District Munsif Court, Pollachi.

                                      For petitioner   :   Mr.A.Arun

                                                       ORDER

This Civil Revision Petition has been filed seeking to set aside the docket

order dated 04.03.2024 made in E.A.C.F.R.No.740 of 2024 in E.P.No.07 of 2019

in O.S.No.419 of 1992 on the file of the Principal District Munsif Court, Pollachi.

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2. The petitioner is the 81st defendant in the suit filed by the

respondent/plaintiff in O.S.No.419 of 1992 on the file of the Principal District

Munsif Court, Pollachi, for declaring his share and permanent injunction. The

preliminary decree was passed in the suit on 26.02.1993 and the final decree was

passed on 29.06.2007. The petitioner has not preferred any appeal against the

same. Thereafter, the respondent/plaintiff had filed an execution petition in

E.P.No.07 of 2019 for execution of the decree. While so, the petitioner had filed a

petition in E.A.C.F.R.No.740 of 2024 under Section 47 of the Code of Civil

Procedure, raising various issues beyond the decree. The executing Court without

numbering had rejected the application as not maintainable holding that the

executing court cannot go beyond the decree, since the questions raised and

decided by the trial Court cannot be be again raised in the execution proceedings.

The present revision petition has been filed challenging the docket order dated

04.03.2024 passed by the executing Court by going into the merits of the case and

rejecting it as not maintainable, even without numbering the same.

3. Learned counsel for the petitioner submitted that the Executing

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Court, even without numbering the petition, has gone to decide the merits of the

case and held that the petition is not maintainable. He further submitted that such

order cannot be passed by the executing Court even without numbering the

petition. In support of his contention, he relied upon the judgment in the case of

K.Venkatesan & Others Vs. E.Hemantharaj reported in CDJ 2016 MHC 562,

wherein it has held as follows :

“ 6. Though the said contention cannot be raised by the Judgment Debtors in the Section 47 application in view of the above referred judgment, the Executing Court had rejected the petition going into the merits without numbering the application. The Executing Court could have disposed of the application after numbering the application filed under Section 47 of the Civil Procedure Code. If an application filed under Section 47 is rejected on the question of maintainability, then there is no necessity for going into the merits of the matter. If the Court goes into the merits of the matter, then the application has to be numbered.”

4. This Court, in the above judgment, has held that if any application filed

under Section 47 of CPC is rejected on the question of maintainability by the

Executing Court, then there is no requirement to go into the merits of the matter

and if the Court decides to go into the merits of the matter, then the application has

to be numbered and the order has to be passed. The above said judgment has also

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been relied on by this Court in C.R.P.No.3645 of 2016 dated 05.03.2021.

5. In the case on hand, the Executing Court had rejected the petition filed

under Section 47 of CPC as not maintainable for the reason that the issues raised

in the application filed under Section 47 of CPC were raised already before the

trial Court.

6. In view of the above, this Civil Revision Petition stands allowed and the