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2010 DIGILAW 2614 (MAD)

Jayagopal Chetty (Died) v. Manickam

2010-06-30

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the order dated 23.12.2009 passed by the learned Subordinate Judge, Attur in REP No. 28 of 2008 in O.S. No. 153 of 2000, this civil revision petition is focused. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision would run thus: “Manickam, the respondent herein obtained a money decree as against one Jayagopal Chetty. Subsequently, the said Jayagopal Chetty died. REP No.28 of 2008 was filed by the respondent citing Venkatesan, the son of Jayagopal Chetty as the person representing the Judgment Debtor and also as the person, who is liable to discharge the debt in view of fact that he inherited the properties described in the schedule of the E.P. Whereupon, counter was filed by the said Venkatesan, the revision petitioner herein contending that he had not inherited the properties of the deceased Jayagopal Chetty. Whereas Jayagopal Chetty during his lifetime executed a gift settlement deed dated 25.06.1999 (only during the revisional stage, the photocopy of the settlement deed is shown by the learned counsel for the revision petitioner) donating the properties described in the schedule to the E.P in favour of the revision petitioners son Naresh. No oral or documentary evidence was adduced before the Executing Court. After hearing both sides, the lower court ordered sale of the property described in the schedule of the EP on the ground that the property was already attached. In Column No. 9 of the E.P, it is found specified that the property was already attached, presumably during the pendency of the suit.” 4. Being aggrieved by and dissatisfied with the said order of the lower court, this revision has been filed on various grounds, the gist and kernel of them would run thus: “The lower court was not justified in simply ordering sale without directing the decree holder to implead the actual settle, viz., Naresh as one of the parties, in view of the fact that the revision petitioner herein is in no way, as of now, concerned with the property. The order passed in the execution proceedings suffers from illegality and impropriety.” 5. The order passed in the execution proceedings suffers from illegality and impropriety.” 5. Placing reliance on the grounds of revision, the learned counsel for the revision petitioner would develop his argument to the effect that it is the duty of the executing court to see that as per Section 50 of the Code of Civil Procedure, the legal heir who stepped into the shoes of the deceased, actually inherited the property of the deceased, once the revision petitioner herein submitted before the court that even though he happened to be the son, he has not inherited the property of the Judgment Debtor; Jayagopal Chetty, during his life time itself and that too, even before the institution of the suit by the decree holder settled the property in favour of Naresh and that therefore the court should not have simply ordered for sale. 6. Whereas the learned counsel for the decree holder would submit that the counter is vague as vagueness could be and nothing is found spelt out about the interest of the said Naresh. No document was produced. Neither the court nor the decree holder is expected to take the versions in the counter for gospel truth and act upon it. If at all, the revision petitioner was sincere in his representation to the court, he ought to have filed the relevant document so as to make the court to arrive at a conclusion. 7. The learned counsel for the decree holder also would submit that even during the life of Jayagopal Chetty, the property was attached and in such a case, the attachment is binding on the legal heirs including the alleged settle. Accordingly, he prays for the dismissal of the revision. 8. The point for consideration is as to whether there is any illegality or impropriety on the part of the court in passing orders without having before the court the alleged settlee, viz., Naresh? 9. The narration of facts supra would unambiguously and unequivocally, highlight and spotlight the fact that even during the lifetime of Jayagopal Chetty, the property was attached and that he did not take action against it. The revision petitioner herein has not chosen to place any document before the lower court to act accordingly. 10. I recollect and call up the maxim Vigilantibus et non dormientibus jura subveniunt The laws aid those who are vigilant, not those who sleep upon their rights. The revision petitioner herein has not chosen to place any document before the lower court to act accordingly. 10. I recollect and call up the maxim Vigilantibus et non dormientibus jura subveniunt The laws aid those who are vigilant, not those who sleep upon their rights. The interested party should take appropriate action and it is not something unknown in law. The real owners are as per procedural law coming before the court and filing appropriate application to get themselves impleaded and they could resist the execution process by filing appropriate documents. Here the revision petitioner poses as though he is totally unconnected with the property, however he has chosen to file this revision. 11. I am at a loss to understand as to what actuated and propelled, geared and galvanised him to file this revision, when he is not at all interested in the property. So, it is clear that on behalf of his son, he has chosen to file this revision, but without disclosing that he is intending to protect the interest of his son. Instead of doing this, he could have very well instructed his son to initiate action, so as to prevent the property from being brought for sale. But that has not been done. 12. As such, even though, I could see that there is no genuine intention on the part of the revision petitioner in prosecuting the matter and in fact he intends to safeguard only his sons interest, yet for the purpose of shortening the litigative process, I would like to direct the lower court to see that at the instance of the decree holder, the said Naresh also is impleaded as one of the respondents in the E.P and on adducing oral and documentary evidence and after hearing both sides shall, dispose of the matter. I would like to point out that the lower court is expected to dispose of the matter after impleadment of Naresh in the proceedings, untrammeled and uninfluenced by any of the observations made by this court in this revision. 13. Accordingly, the order of the lower court is set aside and the matter is remitted back to trial court. I would like to point out that the lower court is expected to dispose of the matter after impleadment of Naresh in the proceedings, untrammeled and uninfluenced by any of the observations made by this court in this revision. 13. Accordingly, the order of the lower court is set aside and the matter is remitted back to trial court. The decree holder shall take steps to implead Naresh also as one of the respondents and even such other persons whom, the decree holder might deem fit to add as respondents in the execution proceedings, in order to give a quietus to the controversies. The lower court shall see to it that the matter is disposed of on or before 31.08.2010. 14. With the above direction, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.