T.M. Bhoopathy vs Ummuhabeeba

S. Tamilvanan, J.—This Civil Revision Petition has been preferred u/s 115 of the Code of Civil Procedure, challenging the order and decretal order dated 26.6.2012 made in E.A. No. 488 of 2011 in E.P. No. 2609 of 2007 in O.S. No. 2192 of 2003 on the file of the IX Asst. Judge, City Civil Court, Chennai. The petitioner herein is the Judgment-Debtor and it is seen from the impugned order that the Execution Application in E.A. No. 488 of 2011 was filed by the respondent herein as decree-holder against the revision petitioner/judgment-debtor under Order 47 Rule 1(b) CPC to review the order passed in the Execution Petition in E.P. No. 2609 of 2007 and to allow the said E.P.

As per the decree, dated 11.2.2012 made in O.S. No. 2192 of 2003, the VI Assistant Judge, City Civil Court, directed the revision petitioner herein to pay a sum of Rs. 1,07,500/- with interest on the principal amount, Rs. 75,000/- at 24% p.a. from the date of the plaint till the date of decree and 6% subsequent interest thereafter till the payment is made with costs to the respondent/decree-holder, who was the second plaintiff in the suit. Appeal preferred by the revision petitioner/defendant in A.S. No. 110 of 2006 was dismissed by the Appellate Court, by its Judgment, dated 3.2.2007.

Pursuant to the Judgment and Decree, the respondent herein filed Execution Petition in E.P. No. 2609 of 2007, under Order 21 Rule 43 and 64 CPC and sought attachment of sale of movable properties that were available at the residence of the Judgment-Debtor to realise the decree amount with interest and costs.

The revision petitioner/judgment-debtor filed Execution Application in E.A. No. 5302 of 2008 to refer the Execution Petition in any one of the four modes of settlement, as per Section 89(1) CPC. However, the said Execution Application in E.A. No. 5302 of 2008 was dismissed by the Executing Court (IX Asst. City Civil Court), Chennai. Aggrieved by which, the revision petitioner/judgment-debtor preferred C.R.P. (NPD) No. 1808 of 2010 before this Court.

As per order, dated 17.6.2010 made in C.R.P. (NPD) No. 1808 of 2010, this Court (G. Rajasuria, J.) directed the Court below to refer the matter for mediation by 22.6.2010. It was also made clear that if no settlement is arrived at within 15 days, thereafter, the matter shall be decided by the Executing Court, where upon the executing Court within a week shall pass orders on merits, as per law without delay. The matter was not settled by way of mediation, as directed by this Court, by order, dated 17.6.2010. Subsequently, the matter was placed before the E.P. Court for disposal, according to law. However, the E.P. Court, by its order, dated 20.7.2010 erroneously dismissed the E.P.

It is an admitted fact that the respondent herein had filed the suit and got a money decree against the revision petitioner/judgment-debtor. Though the petitioner/judgment-debtor had preferred appeal in A.S. No. 110 of 2006, confirming the Judgment and Decree passed by the trial Court, the said appeal preferred by the petitioner herein was dismissed by the appellate Court. Hence, the order and decretal order rendered by the trial Court reached its finality.

Pursuant to the Judgment and Decree, the respondent herein, being the decree-holder filed Execution Petition in E.P. No. 2609 of 2007, wherein the revision petitioner filed E.A. No. 5302 of 2008, seeking an order to refer the matter for settlement, u/s 89(1) CPC. However, the same was dismissed by the E.P. Court. Aggrieved by which, the earlier revision in C.R.P. (NPD) No. 1808 of 2010 was preferred, wherein by order, dated 17.6.2010, this Court directed the Court below to refer the matter to the Court attached mediation by 22.6.2010. In the order, it was made clear that if settlement is not arrived at within 15 days, the same should be returned back to the E.P. Court for proper disposal according to law. Admittedly, there was no settlement, by way of mediation. Hence, the Court below could have disposed the E.P. on merits, however, erroneously, by order, dated 27.10.2010 dismissed the Execution Petition.

Mr. G. Appavu, learned counsel appearing for the petitioner submitted that the husband of the respondent/decree-holder had obtained Rs. 25,000/- on 13.12.2000 and Rs. 2,00,000/- on 14.2.2000 from the judgment-debtor and that was not repaid. Admittedly the suit was filed in the year 2003 and the trial Court decreed the suit, which has reached its finality. In the aforesaid circumstances, the revision petitioner/judgment-debtor cannot raise a plea that the husband of the respondent/decree-holder had obtained any loan amount from the petitioner/judgment-debtor, prior to the decree. In the eye of law, the respondent is different from her husband. If there is any subsisting claim, judgment-debtor would be entitled to establish the claim against the husband of the respondent/decree-holder and seek appropriate relief, however, the same would not be a legal defence in the E.P. Similarly, even if the cost claimed by the respondent/decree-holder is more than the amount specified in the decree, the relief could be moulded accordingly by the E.P. Court, however, the E.P. Court cannot dismiss the E.P. The E.P. Court had erroneously dismissed the E.P. Aggrieved by which, the respondent/decree-holder filed E.A. No. 488 of 2011, review petition to set aside the order of dismissal of the E.P. and to allow the E.P.

The Court below, by the impugned order, dated 26.6.2012, while allowing the E.A. No. 488 of 2011 and to restore the same, setting aside the order of dismissal of the E.P. the Court below has straight away allowed the E.P. which is not legally sustainable. Merely by allowing the E.P. the decree-holder cannot realise the decree amount in the E.P.

After restoring the E.P. the Court below could have called the same in the open Court and disposed the same according to law. In the aforesaid review petition in E.A. No. 488 of 2011, the respondent/decree-holder had sought a relief of setting aside the order of dismissal of the E.P. and to allow the E.P. since the E.P. was erroneously dismissed. There is no error in setting aside the order of dismissal and restoring the E.P. however, straight away the Court below could not have allowed the E.P. The impugned order reads that the E.P. itself was allowed, which does not realise the amount, as per the decree and satisfy the same. Having considered the facts and circumstances, this Civil Revision Petition is partly allowed, so far as setting aside the order of dismissal is concerned, the same is confirmed, however, straight away allowing the E.P. is set aside. Consequently, connected miscellaneous petition is closed. The E.P. Court is directed to restore the E.P. No. 2609 of 2010 and after providing reasonable opportunity to both sides, dispose the Execution Petition, as per procedure known to law, within three months from the date of receipt of a copy of this order, uninfluenced by the findings of this Court. No costs.