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2004 DIGILAW 606 (MAD)

Jairaj v. Praful Kumar Pukhraj & Others

2004-04-01

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The 5th defendant/5th judgment-debtor/5th respondent in E.P.No.601 of 2001 in O.S.No.733 of 1999 on the file of the IX Assistant Judge, City Civil Court, Madras is the revision petitioner. The revision is filed disputing the correctness of the order of attachment of movables dated 13.3.2001 made in the E.P.No.601 of 2001. 2. The first respondent herein filed the suit O.S.No.733 of 1999 before the II Assistant Judge, City Civil Court, Madras to recover the sum of Rs.20,100/- with future interest at 21% per annum from the date of plaint till realisation. The said amount is due on the suit promissory note executed by the defendants 1 to 5 and the 5th defendant is the revision petitioner. It appears the said suit was decreed ex parte on 7.7.2000. The plaintiff filed E.P.No.601 of 2001 to recover the amount decreed against the defendants 3 to 5 by ordering attachment of movables. The executing Court ordered attachment of movables by dispensing with the notice to the defendants 3 to 5/judgment-debtors 3 to 5. Such order is challenged by the 5th defendant in this Civil Revision Petition. 3. The learned counsel for the 5th defendant/revision petitioner submitted that the 5th defendant/revision petitioner was not served with summons in the suit. In this regard, the learned counsel pointed out that the address of the 5th defendant/revision petitioner is given as No.55, 13th Avenue, Harrington Road, Chennai-600 031 in the plaint. The notice sent to the above address was returned unserved. Therefore, it appears publication was ordered mentioning the same address and such service was held sufficient and the 5th defendant was set ex parte in the suit and accordingly ex parte decree was passed against the 5th defendant, viz., the revision petitioner also. The learned counsel also submitted a xerox copy of ration card issued to the revision petitioner as early as in June, 1998, in which the address of the revision petitioner is given as Door No.5/36, Harrington 13th Street, Chennai 600031. The learned counsel further submitted that in fact, the petition filed before the concerned Court to condone the delay of 219 days in representing the petition SR No.14116 of 2001 to set aside the ex parte decree was dismissed on 12.4.2002. The learned counsel further submitted that in fact, the petition filed before the concerned Court to condone the delay of 219 days in representing the petition SR No.14116 of 2001 to set aside the ex parte decree was dismissed on 12.4.2002. It appears that as per order in C.R.P.(NPD))No.879 of 2003 dated 5.8.2003 the petition I.A.No.5384 of 2002 which was filed to condone the delay of 219 days in representing the petition SR No.14116 was allowed. Now the petition I.A.No.18368 of 2003 to condone the delay of 245 days in filing the petition to set aside the ex parte decree is pending in the trial Court. The learned counsel further submitted that in the said circumstances, the order of attachment of movables in E.P.No.601 of 2001 is not proper. 4. The records reveal that E.P.No.601 of 2001 was filed on 9.3.2001 along with E.A.No.1249 of 2001 to dispense with the notice to the defendants 3 to 5/judgment debtors 3 to 5, which was allowed and attachment of movables was ordered on 13.3.2001. In column No.11 in E.P.No.601 of 2001, the decree is sought to be executed against the defendants 3 to 5/judgment-debtors 3 to 5 and the address of the defendants 3 and 4/judgment-debtors 3 and 4 is given as 4/1, Radhakrishna Nagar, II Cross Street, Tiruvanmiyur, Chennai-41 and that of the 5th defendant/5th judgment-debtor, viz., the revision petitioner is given as Old No.5A, New No.11, Maruthi Appartments, Harrington Road, Chennai-31. 10 items of movables are sought to be attached as kept in the address of the judgment-debtors 3 to 5/defendants 3 to 5. It is not made clear as to where the said items of movables are kept. As per Order 21 Rule 22(1)(a) C.P.C. where an application for execution is made more than two years after the date of decree, the Court executing the decree shall issue a notice as to why the decree should not be executed against him. E.P.No.601 of 2001, which is subject matter of this Civil Revision Petition, was filed on 9.3.2001 to execute the decree dated 7.7.1999, is within two years. E.P.No.601 of 2001, which is subject matter of this Civil Revision Petition, was filed on 9.3.2001 to execute the decree dated 7.7.1999, is within two years. However, the order of attachment of movables made by the executing Court appears to be incorrect, as it is not made clear in the execution petition as to where the movables are kept, whether it is in the place of the defendants 3 and 4 at 4/1, Radhakrishna Nagar, II Cross Street, Tiruvanmiyur, Chennai-41 or at the place of the 5th defendant/5th judgment-debtor, viz., the revision petitioner at Old No.5A, New No.11, Maruthi Appartments, Harrington Road, Chennai-31. 5. Further, as rightly argued by the learned counsel for the revision petitioner that the petition I.A.No.18368 of 2003 to condone the delay of 245 days in filing the petition to set aside the ex parte decree is pending in the trial Court. The said petition itself was filed to set aside the ex parte decree stating that the 5th defendant/5th judgment-debtor, viz., the revision petitioner was not served with suit summons and as per which an ex parte decree was passed. Therefore, inasmuch as the correct address has not been furnished in the Execution Petition as to where exactly the movables sought to be attached have been kept, whether it is in the address of the defendants 3 and 4, who are husband and wife or in the address of 5th defendant/revision petitioner, as such, the order of the executing Court ordering attachment of movables is to be set aside. 6. In the result, this Civil Revision Petition is allowed, setting aside the order of attachment of movables dated 13.3.2001 made in E.P.No.601 of 2001 in O.S.No.733 of 1999 by the Executing Court. The Executing Court is directed to dispose the above E.P. in accordance with law and after issuing notice to the 5th defendant/5th judgment-debtor, viz., the revision petitioner. No cost.