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2005 DIGILAW 637 (MAD)

P. Natarajan & Another v. M. Kulanthairaju

2005-04-12

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Sec.115 C.P.C against the order of the III Additional Subordinate Judge, Madurai dated 28.01.2002 in E.A.No.26 of 2002 in E.A.No.25 of 2002 in E.P.No.17 of 2001 in O.S.No.337 of 1997, as stated therein.) This Civil Revision Petition is directed against the fair and decretal order of the III Additional Subordinate Judge, Madurai dated 28.01.2002 in E.A.No.26 of 2002 in E.A.No.25 of 2002 in E.P.No.17 of 2001 in O.S.No.337 of 1997, allowing the stay petition on condition that the Revision Petitioners / Defendants are to deposit half of the Suit Claim. The Defendants / Judgment Debtors are the Revision Petitioners. 2. The facts led to the filing of E.P.No.17 of 2001 and E.A.No.25 of 2002 are to be stated first:- (i) O.S.No.337 of 1997 – Decree dated 02.11.1999: - The Respondent / Plaintiff has filed this Suit in O.S.No.337 of 1997, claiming Rs.2,50,000/- on the basis of Consent Deed executed by the Revision Petitioners / Defendants. The Defendants entered appearance in the Suit. For non-filing of the Written Statement, the Defendants were set exparte. The Suit was decreed exparte for the suit claim with subsequent interest. In the said Suit, I.A.No.223 of 1997 was filed for Attaching the petition mentioned property Before Judgment. Attachment Before Judgment was ordered, which was made absolute on 07.10.1999. (ii) E.P.No.17 of 2001 in O.S.No.337 of 1997: - For executing the Decree in O.S.No.337 of 1997, the Respondent / Plaintiff has filed the Execution Petition. The amount claimed in the Suit and the Execution Petition are as follows: - Principal Amount ....... Rs. 2,50,000/- Suit claim ....... Rs. 3,39,833/- Amount claimed in the Execution Petition ....... Rs. 4,16,932/- For the amount claimed in the Execution Petition, Petition for sale of the House Property was filed, regarding which Attachment Before Judgment was made absolute. In the Execution Petition also, the Revision Petitioners have entered appearance; but they have not filed their Counter. For non-filing of the Counter, the Revision Petitioners were set exparte. For selling the properties, sale proclamation was ordered on 02.08.2001. The date of sale was fixed on 08.04.2002. In the Execution Petition also, the Revision Petitioners have entered appearance; but they have not filed their Counter. For non-filing of the Counter, the Revision Petitioners were set exparte. For selling the properties, sale proclamation was ordered on 02.08.2001. The date of sale was fixed on 08.04.2002. (iii) E.A.Nos.25 of 2002 and 26 of 2002 in E.P.No.17 of 2001: - The Revision Petitioners / Defendants have filed the Petition under Sec.47 C.P.C for ordering that the Execution Petition in E.P.No.17 of 2001 is not maintainable on the ground that the order passed by the Trial Court in I.A.No.223 of 1997 ordering Attachment Before Judgment of the Suit Properties is void, invalid, inexecutable and unenforceable in law. In the Petition under Sec.47 C.P.C., the following contentions were raised: - (i) that the Consent Deed referred in the Plaint is a concocted document and signatures of the Defendants have been obtained under threat before the Police Officials; (ii) for non-compliance of the mandatory provisions under Order 38 Rule 5 C.P.C, the Attachment Before Judgment of the Suit Properties ordered in I.A.No.223 of 1997 is invalid and inexecutable. 3. For staying the further proceedings in the Execution Petition, the Revision Petitioners have also filed E.A.No.26 of 2002 for stay of the Execution Proceedings till the disposal of the Petition under Sec.47 C.P.C. In the stay petition E.A.No.26 of 2002, learned Subordinate Judge, Madurai has granted Interim Stay "...on condition that the Petitioner shall deposit on or before 11.02.2002 half of the amount of the suit claim failing which the order of interim stay shall stand vacated automatically. Notice to Respondent by then...". 4. Aggrieved over the order of Interim Stay on condition that the Petitioner is to deposit half of the suit claim on or before 11.02.2002, the Revision Petitioners / Defendants have preferred this Civil Revision Petition. 5. Assailing the impugned order, learned counsel for the Revision Petitioners / Defendants have submitted that the direction to deposit half of the suit claim is presumptive and not in proper appreciation of the contentious points urged by the Defendants in challenging the exparte decree and the Attachment Before Judgment. Mainly attacking the Attachment Before Judgment passed in I.A.No.223 of 1997, learned counsel has submitted that there is no executable decree and E.P.No.17 of 2001 is not maintainable. Mainly attacking the Attachment Before Judgment passed in I.A.No.223 of 1997, learned counsel has submitted that there is no executable decree and E.P.No.17 of 2001 is not maintainable. It is further submitted that the alleged document termed as "Consent Deed" obtained before the Police Officers and that the Decree has been challenged on the ground that the document had been concocted, it is contended that the Trial Court has not properly appreciated the contentious points urged before passing the impugned order. Learned counsel has also pointed out the pendency of I.A.No.61 of 2002 (filed under Sec.5 of the Limitation Act) and I.A.No.62 of 2002 (Petition under Sec.5 in I.A.No.223 of 1997) and submitted that unless the impugned order is reversed, the Revision Petitioners / Defendants would be subjected to hardship. 6. Countering the arguments of the Revision Petitioners / Defendants, learned counsel for the Respondent / Plaintiff has submitted that the Decree has been passed only after giving sufficient opportunity to the Defendants for filing the Written Statement. Drawing the attention of the Court to the Execution Proceedings, it is submitted that the Execution Petition is pending at the stage of issuance of proclamation and that when the date has been fixed for sale of the Properties, the Revision Petitioners have belatedly filed the Application under Sec.47 C.P.C to delay the sale proceedings. It is submitted that taking note of the conduct of the Revision Petitioners, the Trial Court has rightly passed the order of stay on condition that the Revision Petitioners are to deposit half of the Suit Amount, which does not suffer from any infirmity warranting interference. 7. Whether the impugned order directing the Revision Petitioners / Defendants to pay half of the suit claim (Rs.3,39,833/-) suffers from any infirmity warranting interference is the only point that arises for consideration in this Revision Petition. 8. Even at the outset, it is to be pointed out that at the time of admitting the Revision Petition, the Revision Petitioners were directed to deposit Rs.50,000/-, which has been complied with. It is further noted that the said amount of Rs.50,000/- is said to have been withdrawn by the Respondent / Plaintiff / Decree Holder. 8. Even at the outset, it is to be pointed out that at the time of admitting the Revision Petition, the Revision Petitioners were directed to deposit Rs.50,000/-, which has been complied with. It is further noted that the said amount of Rs.50,000/- is said to have been withdrawn by the Respondent / Plaintiff / Decree Holder. E.A.No.25 of 2002 - Petition under Sec.47 C.P.C has been filed by the Revision Petitioners / Defendants on the serious allegations of denying the execution of the Suit Document – Consent Deed, said to have been executed by the Defendant agreeing to repay Rs.2,50,000/- with subsequent interest. The Execution of the Document is denied on the ground that it was not executed by the Defendants out of their free will and volition. Another fold of argument is also advanced challenging the order of Attachment Before Judgment passed in I.A.No.223 of 1997. The Executability of the Decree is strongly attacked on the ground that the Order of Attachment Before Judgment of the Suit Properties was passed in gross violation of the provisions of Order 38 Rule 5 and that no opportunity had been afforded to the defendants calling upon them to furnish security before ordering the Attachment Before Judgment. The merits of the contentious points cannot be gone into at this stage in view of pendency of E.A.No.25 of 2002 – filed under Sec.47 C.P.C. Without going into the merits and the contentious points urged, the point for consideration in this Revision Petition lies in a narrow compass to consider the correctness of the impugned order. 9. The condition directing the Revision Petitioners is to deposit half of the Suit claim (Rs.3,39,833/-) is approximately around Rs.1,70,000/-. Considering the conduct of the Revision Petitioners / Defendants, the direction to deposit half of the suit claim cannot be said to be harsh or unreasonable. As noted earlier, in the suit stage, the Revision Petitioners have entered appearance. For non filing of the Written Statement, they were set exparte and exparte decree was passed. In the Execution Petition stage also, the Revision Petitioners have entered appearance and have not chosen to file their counter. For non filing of the counter, they were set exparte and sale of the attached properties was ordered. There has been considerable progress in the Execution Petition. Proclamation for sale of the properties has been issued fixing the date of sale on 08.04.2002. For non filing of the counter, they were set exparte and sale of the attached properties was ordered. There has been considerable progress in the Execution Petition. Proclamation for sale of the properties has been issued fixing the date of sale on 08.04.2002. Keeping in view the conduct of the Revision Petitioners in appearing in the proceedings and remaining exparte, to infuse sense of responsibility in them and to avoid any further delay, the Executing Court has rightly directed the Revision Petitioner to deposit half of the suit claim. The Impugned Order cannot be said to be unfair. 10. Learned counsel for the Revision Petitioners / Defendants has submitted that the Defendants have great difficulties in mobilising the huge amount. It is further submitted that in view of the huge claim involved and the serious contentious points urged by the Defendants, an opportunity is to be given to them to contest the petition under Sec.47 C.P.C and the Suit. Considering the nature of averments set forth in E.A.No.25 of 2002, this Court is of the view that it is appropriate to afford an opportunity to the Revision Petitioners to put forth their contention in E.A.No.25 of 2002. Keeping in view the huge claim involved and that the Revision Petitioners have already paid the amount of Rs.50,000/-, the impugned order is modified, directing the Revision Petitioners / Defendants to deposit a further sum of Rs.50,000/- (Rupees Fifty Thousand Only). On depositing Rs.50,000/- (Rupees Fifty Thousand only) by the Revision Petitioners / Defendants within a period of four weeks from the date of receipt of copy of this Order, the Interim Stay granted by the Executing Court would be made absolute, till the disposal of E.A.No.25 of 2002, failing which the Impugned Order shall hold good. 11. This Civil Revision Petition is partly allowed modifying the order of the III Additional Subordinate Judge, Madurai dated 28.01.2002 in E.A.No.26 of 2002 in E.A.No.25 of 2002 in E.P.No.17 of 2001 in O.S.No.337 of 1997. The Revision Petitioners / Defendants are directed to deposit a further sum of Rs.50,000/- (in addition to the amount of Rs.50,000/- already deposited)in the Executing Court / III Additional Subordinate Judge, Madurai within a period of six weeks from the date of receipt of copy of this order, failing which the impugned order shall hold good. 12. The Revision Petitioners / Defendants are directed to deposit a further sum of Rs.50,000/- (in addition to the amount of Rs.50,000/- already deposited)in the Executing Court / III Additional Subordinate Judge, Madurai within a period of six weeks from the date of receipt of copy of this order, failing which the impugned order shall hold good. 12. On such deposit, the Respondent / Plaintiff / Decree Holder is permitted to withdraw the amount by filing necessary Affidavit of Undertaking, undertaking to redeposit the amount if necessitated. The Trial Court / Principal Subordinate Judge, Madurai is directed to expedite the disposal of the Application filed under Sec.5 of the Act in I.A.No.61 of 2002 and 62 of 2002. In the circumstances of the case, there is no order as to costs.