Kolandaisamy vs Soundirarajan, Vidya and Jayakannan

S. Palanivelu, J.—Challenging the petition and order dated 05.12.2008, made in E.A. No. 319 of 2005, in E.P. No. 46 of 2004, in O.S.

No. 173 of 1993, on the file of the District Munsif Court, Dharapuram, this petition has been filed.

The petitioner is the judgment-debtor in E.P. No. 46 of 2004 in O.S. No. 173 of 1993, on the file of the District Munsif Court, Dharapuram.

The properties were brought for sale by the first respondent to satisfy a money decree. The properties were sold in Court auction on 16.08.2005.

He filed an application in E.A. No. 319 of 2005 under Order 21, Rule 90 and Section 47 and 151 CPC praying the Court to set aside the sale.

When the petition was taken up for hearing on 05.12.2008, due to the non-appearance of the petitioner, it was dismissed for default, since the

learned Counsel appearing for the petitioner reported ""no instruction"". The said order dated 05.12.2008 is challenged before this Court.

Mr. Lakshmanasamy, learned Counsel appearing for the petitioner would contend that even though the petitioner was not present before the

Court, the Court could not dismiss the petition for default on the representation of the counsel for the petitioner, but, it has to issue notice to the

petitioner, who was not present before the Court for further proceedings and without adopting such procedure, the dismissal order was passed

and the same is not sustainable.

Conversely, Mr. S. Dhanasekaran, learned Counsel appearing for the respondents would submit that even though the petitioner was afforded

with ample opportunities on earlier occasions, he did not make his appearance on 05.12.2008 and hence, the petition was dismissed and that there

is no need for the Court to issue notice to him once again, since earlier opportunities were not utilised by the petitioner properly to put forth his

claim and the present attempt is only to drag on the proceedings.

The decree-holder has filed a counter in E.A. No. 319 of 2005 containing the particulars of earlier proceedings in the Execution Petition, in

which, very many adjournments were granted and on 05.02.2007, the petitioner was not present and he was called absent and the petition (E.A.

No. 319 of 2005) was dismissed for default. After that, he filed an application in E.A. No. 102 of 2007, to restore the same but, it was dismissed

by the Executing Court. The petitioner preferred revision before this Court against the said order of dismissal in C.R.P. No. 3140 of 2007, in

which, a conditional order was passed directing him to deposit 50% of the decree amount within eight weeks. But, the direction was not complied

with.

C.R.P. (NPD) No. 3140 of 2007 was taken up for final hearing and it was allowed on condition of payment of cost of Rs. 3,000/- with a

direction to the Executing Court to dispose of E.A. No. 319 of 2005 within two months. In pursuance of the order of the High Court, E.A. No.

319 of 2005 was restored to file on 24.10.2008. It was posted to 29.10.2008 and 31.10.2008, but the counsel for the petitioner reported no

instruction on 03.11.2008.

It is stated that the sale was confirmed on 15.12.2008, and the sale deed was also executed and registered in favour of the decree-holder on

furnishing of stamp papers to the value of Rs. 14,000/-. It is also contended by the decree-holder that only due to the fault on the part of the

petitioner, the learned Counsel reported no instruction and in these circumstances, no indulgence could be shown by the Court.

In this context, the learned Counsel appearing for the petitioner would argue that even though the Court passed an order of dismissal or ex parte

on representation of the counsel for the party, in the case of non-appearance before this Court, the Court has to issue notice to him for appearance

and to proceed further with the matter.

In support of his contention, he placed much reliance upon a decision of the Supreme Court reported in Tahil Ram Issardas Sadarangani and

others Vs. Ramchand Issardas Sadarangani and another, wherein Their Lordships have held as follows:

It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not

present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are

of the view, when Mr. Adhia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been

sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be

made to suffer.

The said decision was referred to in the subsequent ruling of the Supreme Court reported in AIR 1998 Sc 258 Malkiat Singh and Anr. v.

Joginder Singh and Ors.. This Court in Narayana Gounder Vs. Devaki Ammal and another, also referred the above said decision in Tahil Ram

Issardas Sadarangani case.

From the decisions afore-mentioned, it emerges that the non-appearance should not be intentional and the dismissal order passed by the Court

should not have been passed at the fault of the party. If any intentional element of dragging on the matter, putting a stumbling block for the decree-

holder to enjoy the fruits of the decree or of the person who got the benefit of getting the auction in his favour through Court is inferred, then, it can

be decided that the party was at fault, which would disentitle him to get the benefit of the above said principles.

Adverting to the facts of the case on the earlier occasion, the petitioner did not appear and the application in E.A. No. 319 of 2005 was

dismissed on 05.02.2007 and he filed an application in E.A. No. 102 of 2007 to restore the same, but it suffered dismissal. He preferred the

revision before this Court and this Court allowed the revision observing that one more opportunity may be granted to him. But the petitioner was

not conscious nor cautious enough to pursue the matter properly after the E.A. No. 319 of 2005 was restored to file leading the Advocate to

report no instruction. It seems that on the two occasions, the petitioner did not present and element of intention to drag on the matter could be

ascertained. Had he been careful enough, he might have properly instructed his Advocate to pursue the matter in the Executing Court and if it was

so, the Advocate also might have represented the case on his behalf. Neither of the parties has produced the affidavit in E.A. No. 102 of 2007 to

know the reasons for his non-appearance on earlier occasion.

13(a). Challenging the order passed on 05.12.2008, the petitioner has moved this Court only in July 2009, under Article 227 of the Constitution of

India.

13(b). The High Court has to direct the party to avail himself of such remedies one way or the other before he resorts to a constitutional remedy

and when an efficacious alternative remedy before the executing Court was very much available to the petitioner, he cannot invoke Article 227 of

the Constitution of India to correct the error. The power under Article 227 of the Constitution of India has to be exercised by this Court sparingly

and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not to correct mere errors. The said

views have been expressed by the Supreme Court in A. Venkatasubbiah Naidu Vs. S. Challappan and Others, and in Chandrasekhar Singh and

Others Vs. Siya Ram Singh and Others, .

13(c). The petitioner might have filed an application before the Executing Court itself to set aside the dismissal order and to restore the E.A. No.

319 of 2005 setting forth the reasons which prevented him from giving proper instruction to his Advocate or making appearance before the Court.

This Court is at loss to understand that for what reason he ignored the Court on 03.11.2008. He may file any such application, if so advised, of

course, subject to limitation.

In these circumstances, this Court is of the opinion that the petitioner was not prevented by sufficient cause in appearing before the Court and

only due to his fault the petition was dismissed for default and in this regard, he cannot have recourse to the principles laid down in the decisions

afore-stated.

In such view of this matter, the order passed by the Executing Court does not suffer from any infirmity which deserves to be confirmed and it is

accordingly confirmed. The Civil Revision Petition is devoid of merits.

In fine, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.