Sarala Ammal vs Elayanthangudi Okkur Nagarathar Sangam

C.S. Karnan, J.—This petition has been filed by the Petitioner to direct the learned I Additional District Munsif, Madurai Town to dispose

of the I.A. No. 188 of 2009 in O.S. No. 928 of 2005 expeditiously as early as possible.

The Brief facts of the case are as follows:

The Respondent/Plaintiff has filed a suit in O.S. No. 928 of 2005 against the revision Petitioner/Defendant to direct the Defendant to make delivery

of possession of the suit property and has sought further direction to pay a sum of Rs. 60,000/-for damage for use and occupation of the property

together with interest at the rate of 12% per annum till date of payment and other relief. The said suit was filed on 18.12.2001. The Defendant also

entered appearance through his counsel. The said case was adjourned from time to time. On 21.11.2005, when the said suit came for hearing, the

Plaintiff''s counsel and the Defendant''s counsel appeared but the Defendant was called absent. Therefore, the learned Judge passed an ex-parte

decree in favour of the Plaintiff. Pursuant to the decree and judgment, the Plaintiff has filed E.P. proceedings in E.P. No. 547 of 2008 in O.S. No.

928 of 2005. In the said E.P. proceedings, delivery was ordered, after due notice.

The Revision Petitioner/Defendant has filed interlocutory application in I.A. No. 188 of 2009 on 04.03.2009. The same was resisted by the

Respondent/Plaintiff and the said I.A. is still pending on the file of the I Additional District Munsif Court, Madurai.

Under the circumstances, the revision Petitioner has filed the above civil revision petition to direct the learned I Additional District Munsif,

Madurai to dispose the interlocutory application in I.A. No. 188 of 2009 in O.S.N.928 of 2009 as expeditiously as possible.

The learned Counsel for the revision Petitioner argued that the revision Petitioner is a lawful tenant for several years. The Plaintiff has filed the

suit against the revision Petitioner for delivery of possession. The said suit was decreed ex-parte. The learned Counsel further argued that an ex-

parte decree can be set aside at any time, since several issues have arisen in this suit. All the issues have to be decided only after proper trial. If the

ex-parte decree is executed, against the revision Petitioner, he will be put into hardship. At the same time, if the ex-parte decree is set aside and if

the case is disposed on merits, the interests of the Plaintiff will not be prejudiced.

In support of his contention, the learned Counsel for the Petitioner cited a judgment in the case of M. Nazruddin Vs. The Idol of Arulmigu

Navaneedha Krishnasami and Durgai Amman Vahaira Temples and Others, .

The relevant portion of this judgment reads as follow:

Civil Procedure Code, (V of 1908), Order 21, Rule 26 ? Scope ? Ex parte decree passed ? Execution petition filed ? Judgment-debtor filing

petition to stay execution petition pending orders on his application for setting aside ex parte decree and for condonation of delay ? Executing court

to the transferor court, held, had power to stay execution.

O.21, Rule 26 of the CPC will empower the execution court or the transferor court to grant stay of execution of ex parte decree for a reasonable

time so as to enable the judgment debtor to get further orders from the trial court either on the application u/s 5 of the Limitation Act or under

Order 9, Rule 13, Civil Procedure Code.

In another judgment in the case of A.A. Gopalakrishnan Vs. Cochin Devaswom Board and Others, . The relevant portion of this judgment

reads as follows:

(A) Civil P.C.(5 of 1908), Order 23, Rule 3A ? constitution of India, Article 226 ? Compromise decree ? Protection from further challenge ?

Does not bar High Court, examining allegations of fraud against statutory authority.

O.P. No. 19728 of 2001 (S), D/- 18-10-2005 (Ker), Reserved.

Order 23, Rule 34 provides that No. suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not

lawful. The bar contained in Rule 3A will not come in the way of the High Court examining the validity of a compromise decree, when allegations

of fraud/collusion are made against a statutory authority which entered into such compromise. It is true that decrees of Civil Courts which have

attained finality should not be interfered lightly. But when on an order being passed by High Court directing Temple Board to take possession of

Temple property from Respondent, the Board entered into compromise with Respondent to give up their rights in property in question in lieu of

Respondents giving possession of another property which was also a Temple property and got a compromise decree passed, challenge to such

compromise decree by an aggrieved devotee, who was not a party to the suit, cannot be rejected, where fraud/collusion on the part of officers of a

Statutory Board is made out. Further, when the High Court by order had directed the Board to take possession of suit land immediately from

Respondents in a complaint by another devotee, it was improper for the Board to enter into a settlement with Respondents, giving up the right, title

and interest in suit property without the permission of the Court which passed such order.

The learned Counsel for the Respondent/Plaintiff argued that the ex parte decree passed on 21.11.2005, but the E.P. proceedings was initiated

in the year 2008. Only after sufficient opportunity was given to the revision Petitioner, the E.P. was ordered for delivery of property. Subsequently,

the learned executing court Judge ordered for break open the lock with the help of police aid. This order was passed on the basis of proper

petition of the Plaintiff. This is the factual position. This C.R.P. has been filed by the Petitioner for speedy disposal of the interlocutory application in

I.A. No. 188 of 2009. This application along with condone delay petition to condone delay of more than 1000 days, was made to set aside the

ex-parte decree. Therefore, E.P. proceedings cannot be stayed. As such, the stay petition for stay of the E.P. proceedings is not maintainable.

In support of his contention, he cited a judgment in the case of T. Govindarajan v. T.soundarajan reported in (2007) 2 MLJ 901. The relevant

portion of this judgment reads as follow:

(A) CPC (5 of 1908), Order 21 Rule 64 ? Execution Proceedings ? Property attached and liable to be sold ? Only such portion of the property

necessary to satisfy the decree could be sold-Executing Court has a duty cast upon it to hear the judgment-debtor, so also the decree-holder and

order sale of only such property or a portion there of necessary to satisfy the decree ? Non-compliance of Order 21 Rule 64 Code of Civil

Procedure, vitiates impugned order ? Directions issued to the Executing Court to comply with the mandatory requirement of Order 21 Rule 64

Code of Civil Procedure

In another judgment in the case of G. Suresh Mohan v. Slyly and Anr. reported in 2010 4 L.W. 512. The relevant portion of this judgment

reads as follows:

C.P.C., Order 41, Rule 5/Appeal, delay in filing, Condoning of, Order 21, Rule 26, Section 115.

Respondent filed the suit and obtained a decree for recovery of possession against the revision Petitioner and filed E.P. for enforcing the decree ?

Petitioner/Defendant filed an appeal with application to get the delay 225 days condoned and that application is still pending in the Sub Court,

Perundurai ? After hearing both sides, the Executing Court ordered delivery. Being aggrieved by and dissatisfied with the said order, this revision

has been filed.

Held: Transferee Court in certain circumstances has got the right to stay the execution -But here the Executing Court and the Court which passed

the decree in the suit are one and the same -In such a case, Order 41 Rule 5 of CPC would be the proper provision of law ? Order 41 Rule 5 of

CPC could not be pressed into service for the simple reason that admittedly the appeal time was over long ago ? Revision Petitioner/judgment

debtor had presented the appeal with the delay of 225 days and it is not pending before the appellate forum and in such a case, the Executing

Court appropriately rejected the plea of the revision Petitioner/Judgment debtor to postpone the execution of the decree.

Judgment debtor brought forth on himself such disadvantageous position whereby he incapacitated himself to invoke Order 41 Rule 5 of CPC -

Order 21 Rule 26 of CPC is inapplicable in the facts and circumstances of this case ? CRP dismissed.

In another judgment in the case of Popat and Kotecha Property v. State Bank of India Staff Association reported in 2005 (4) CTC 489. The

relevant portion of this judgment reads as follows:

Code of Civil Procedure, 1908, Order 7, Rule 11 ? Object of Order 7, Rule 11, is to keep out of courts irresponsible suits ? Averments made in

plaint alone would be looked into while considering application for rejection of plaint under Order 7, Rule 11 ? Pleas raised in Written statement

are irrelevant at such stage ? Power vested under Order 7, Rule 11 would be invoked if on meaningful reading of plaint No. clear right to sue is

found and where plaint is vexatious and meritless -Whole plaint must be read and there cannot be compartmentalisation, dissection, segregation

and inversions of language of various paragraphs in plaint ? Averments in plaint is to be construed as its stands without addition or subtraction of

words or change its apparent grammatical sense ? Remedy given to Defendant to challenge maintainability of suit can be restored to at any stage ?

Order 7, Rule 11, casts duty on Court to perform its obligations in rejecting plaint when such plaint is hit by infirmities provided in 4 clauses of Rule

11 and such power is to be exercised even without intervention of Defendant ? Plaintiff can file fresh suit in terms of Rule 13 and rejection of plaint

under Order 7, Rule 11 does not preclude Plaintiff from filing fresh suit ? Case law discussed.

In another judgment in the case of Rathinathammal v. Muthusamy reported in (2004) 3 M.L.J. 36. The relevant portion of this judgment reads

as follows:

Limitation Act (XXXVI of 1963), Section 5 ? Ex parte decree ? One of the Defendants seeking to set aside the ex-parte decree with a delay of

545 days ? Application rejected ? Order challenged in revision ? Though the Petitioner was impleaded at a later stage, she was aware of the suit ?

Suit was allowed to be decreed ex parte ? Only at the time of delivery of property, the Petitioner has chosen to file application for condonation of

delay ? Petitioner was aware of execution proceedings ? Delay cannot be condoned.

In another judgment in the case of Gulf Air Company Vs. V.M. Rajalingam, Sole Proprietor `Bharathi Knitting Company'', . The relevant

portion of this judgment reads as follows:

Code of Civil Procedure, 1908, Order 9, Rule 13 ? Application to set aside ex parte decree ? Absence of sufficient cause ? Application is liable to

be dismissed ? Delay of 3415 days in filing application to set aside ex parte decree -Suit filed on 26.12.1991 ? Summons served on applicant

company on 21.01.1995 ? Ex parte decree passed by High Court on 31.8.1995 ? Application to set aside decree filed on 4.2.2005 ? Application

dismissed ? Original Side Appeal filed by Defendant ? Contention that applicant may be given opportunity to contest suit on merits ? It was held

that questions about sufficient cause and bona fides would depend upon facts of each case ? On facts held No. sufficient cause was shown for

delay and No. bona fide reason brought out to explain delay of 10 years ? Silence of company till summons were served on 21.1.1995 not

explained in affidavit ? Belated explanation about service of summons to old address held unacceptable ? Delay by Plaintiff to file Execution

Petition will not help Defendant ? Reasons given not bonafide ? Sufficient cause not made out ? O.S.A. Dismissed.

Per contra, the learned Counsel for the revision Petitioner argued that the suit property is a temple property. After delivery of the property, it

will be let out to third parties. The revision Petitioner is prepared to pay entire arrears of rent.

The learned Counsel for the Respondent relied in his arguments that this offer of the Petitioner has been made at a belated stage, since the E.P.

was ordered for delivery of property and to break open the lock with police aid. Almost, the entire E.P. proceedings is in the closing stage.

In view of the facts and circumstances of the case, and arugments advanced by the learned Counsel on both sides, this Court is of the

considered opinion that the revision Petitioner prayer is to dispose of the I.A. No. 188 of 2009 in O.S. No. 928 of 2005 on the file of I Additional

District Munsif Court, Madurai Town, and this Court holds that this prayer is justified. Hence, this Court directs the learned I Additional District

Munsif,

C.S. KARNAN, J

Madurai Town to dispose the above case within a period of three months from the date of receipt of this order, without being influenced by this

Courts discussion. Accordingly ordered.

Resultantly, the above civil revision petition is disposed of with the above observations. Consequently, connected miscellaneous petition is

closed.

There is No. order as to costs.