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2004 DIGILAW 557 (MAD)

Thangasamy v. Madasami

2004-03-29

M.KARPAGAVINAYAGAM

body2004
ORDER :- Madasami, the first respondent herein obtained money decree against Thangasamy, the petitioner herein in O. S. No. 566 of 1990. In execution proceedings in E. P. No. 76 of 2000, he attached the property in question. The said property was purchased by Anthonysamy alias Hariharan, the second respondent herein, in Court auction. In pursuance of the Court's order, the Court Ameen delivered the property to the second respondent. Questioning the identity of the property, the petitioner applied a petition challenging the delivery in E. A. No. 78 of 2002. The said application was dismissed by the learned District Munsif. Hence, this civil revision petition. 2. According to the petitioner, the property in question, bearing Door No. 6/56-G, was delivered instead of the house bearing Door No. 6/56 and as such, the said property has to be delivered back to the petitioner. 3. Assailing the impugned order dated 1-8-2003 in E. A. No. 78 of 2002, learned counsel for the petitioner would state that the learned District Munsif, instead of invoking Section 144 of the Civil Procedure Code for re-delivery, wrongly applied Order 21 Rules 99, 100 and 101 CPC and dismissed the petition, and as such, the order impugned is liable to be interfered with. 4. I have carefully considered the submissions made by learned counsel for the petitioner and also gone through the typed set of papers and the impugned order. 5. This case has got a chequered history. (a) Madasami, the first respondent herein filed the suit in O. S. No. 566 of 1990 against the petitioner, for damages of Rs. 5,000/- and the same was decreed. (b) For recovery of the said amount, the said Madasami filed execution petition in E. P. No. 232 of 1991 under Order 21 Rules 37 and 38 CPC for arrest. The petitioner immediately appeared before the court and represented that instead of recovery of the money, he is prepared to agree for attachment of his house bearing Door No. 6/56 and after the sale of the property through Court auction, the decree amount could be realised. Therefore, the said E. P. was dismissed on 7-9-1994. (c) Then, for bringing the property in question in auction, necessary application has been filed in E. P. No. 71 of 1997 under Order 21 Rules 54, 66 and 72 CPC. Therefore, the said E. P. was dismissed on 7-9-1994. (c) Then, for bringing the property in question in auction, necessary application has been filed in E. P. No. 71 of 1997 under Order 21 Rules 54, 66 and 72 CPC. In the sale, Anthonysamy alias Hariharan, the second respondent herein was the successful bidder and the sale was also confirmed on 2-8-1999. (d) Then, for recovery, he filed an application in E. A. No. 76 of 2000 under Order 21 Rule 95 CPC. Accordingly, the delivery was ordered. When the Court Ameen went to the spot for delivery of the property, he found that there was a mistake in the door Number. Therefore, the warrant was returned to the Court. (e) Again, another application has been filed by Anthonysamy in E. A. No. 132 of 2001 for correcting the Door Number. Accordingly, on 10-9-2001, after hearing both parties, the order was passed, correcting the Door Number of the property. (f) Thereafter, on 26-9-2001, the Court Ameen came with the parties and in their presence, the property in question has been taken delivery and was handed over to the auction purchaser, the second respondent herein. 6. Admittedly, there was no challenge of the earlier decree and subsequent orders passed in several execution petitions. At that stage, the petitioner chose to file the application under Order 21 Rules 99, 100 and 101 CPC, in E. A. No. 78 of 2002 for re-delivery, since the property which was delivered to the auction purchaser, is not the property in question and as such, there was a mistaken identity. This application was filed in 2002. A counter has been filed to the said E. A. and after hearing the parties, by order dated 1-8-2003, the application filed by the petitioner was dismissed. 7. The only contention urged by learned counsel for the petitioner is that the application was filed only under Section 144 CPC, and as such, restoration of the property must have been ordered. Chronological events narrated earlier would indicate that this question relating to the wrong Door Number of the property in question, has already been decided in E. A. No. 132 of 2001, in the order dated 10-9-2001 itself. Chronological events narrated earlier would indicate that this question relating to the wrong Door Number of the property in question, has already been decided in E. A. No. 132 of 2001, in the order dated 10-9-2001 itself. Further, the impugned order would indicate that the application has been filed by the petitioner under Order 21 Rules 99, 100 and 101 CPC and under Order 26 Rules 1 and 2 and Section 144 CPC. 8. As correctly pointed out by the executing Court, Order 21 and Order 26 CPC would relate to the person who is other than the judgment debtor. Admittedly, the petitioner is the judgment debtor and as such, these provisions would not apply to the petitioner. 9. Section 144 CPC reads as follows "Application for restitution : (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order, shall on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order." 10. Even Section 144 CPC would not apply to the present case, since there is no material to show that the decree is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose. A reading of Section 144 CPC would indicate that the Court which passed the decree or order, on the application of any party entitled to any benefit by way of restitution, may order for restitution, if the decree is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose. 11. 11. A reading of the petition filed by the petitioner before the executing Court indicates that it does not specify the requirements of Section 144 CPC. It is not the case of the petitioner that the decree which was originally passed, was varied or reversed by any other appellate forum. Therefore, the observation made by the executing Court relating to the attitude of the petitioner, namely that he lacks bona fide, in my view, is perfectly justified. 12. Hence, in my view, the civil revision petition is misconceived and as such, the impugned order is liable to be confirmed. Accordingly, while confirming the impugned order, the civil revision petition is dismissed at the admission stage itself. Consequently, C. M. P. Nos. 2856 and 2857 of 2004 are closed.