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2010 DIGILAW 4708 (MAD)

Vasantha v. Radhakrishnan

2010-10-25

V.PERIYA KARUPPIAH

body2010
Judgment :- 1. This revision has been filed against the dismissal order passed by the lower court in E.A.No.22 of 2010 in E.P.No.58 of 2009 in O.S.No.52 of 2006 on the file of District Munsif Court, Sirkazhi, an application to dismiss the execution proceedings for sale of the property. 2. Heard Mr.V. Venkataseshan, learned counsel for the petitioner. 3. According to the submission of the learned counsel for the petitioner that the petitioner is the mother of the 2nd respondent and she purchased the property when the 2nd respondent was minor, in his name with her funds and she was in possession and enjoyment of the said property throughout and at no point of time the 2nd respondent was in possession and enjoyment of the property. But however, the respondents 1 and 2 have fraudulently created a mortgage deed in respect of the said property and a suit was filed by the 1st respondent in O.S.No.52 of 2006 on the file of District Munsif Court, Sirkazhi against the 2nd respondent and a decree was also obtained and the 1st respondent has filed E.P.No.58 of 2009 and brought the property for sale. He would further submit in his argument that since the right of the petitioner in the property has to be determined in the application filed by her before the execution court as well as in a suit filed by the petitioner in O.S.No.206 of 2009 which is pending disposal, the right of the petitioner should not be prejudiced by bringing the said property for sale under the guise of the decree passed in favour of the 1st respondent and the EP filed by the 1st respondent has to be stayed till the right of the petitioner has been declared. He would further submit in his argument that the lower court did not consider the pendency of the suit in O.S.No.206 of 2009 on the file of District Munsif, Sirkazhi filed against the 2nd respondent and pass an order of stay. He would further submit that the order of the lower court is not in accordance with law and it has to be set aside and therefore, the revision may be admitted. 4. I have given anxious considerations to the arguments advanced by the learned counsel for the petitioner. He would further submit that the order of the lower court is not in accordance with law and it has to be set aside and therefore, the revision may be admitted. 4. I have given anxious considerations to the arguments advanced by the learned counsel for the petitioner. Since a prima facie case of the petitioner has to be found at the stage of admission, we have to go into tracing of the title of the petitioner. Admittedly the suit was purchased in the name of the 2nd respondent when he was minor, showing the petitioner as guardian of the 2nd respondent. It is also not disputed that the 2nd respondent had attained majority long back and thereafter, he had contracted with the 1st respondent for mortgaging the property and thereby borrowed some money. Since the mortgage money was not paid by the 2nd respondent, the 1st respondent has filed a suit against the 2nd respondent on the foot of the mortgage and a preliminary decree was passed on 21.07.2007 and thereafter a final decree was also passed on 20.11.2008. The 1st respondent has filed the execution in E.P.No.58 of 2009 on the foot of the final decree and he brought the property for sale and the 2nd respondent did not appear even after service of notice were made through publication and he was therefore set ex-parte. However, the mother of the 2nd respondent, the present petitioner, has filed applications in E.A.No.22 and 23 of 2010 claiming the property and also for seeking for an order of stay. This revision has been filed by the petitioner against the order of dismissal passed in E.A.No.22 of 2010 an application for stay. 5. It is not disputed that the suit in O.S.No.206 of 2009 is pending for the same relief against the 2nd respondent and now the petitioner has also filed a claim petition in E.A.No.23 of 2010 and it is still pending before the lower court. Therefore, the execution proceedings should have been commenced only after the disposal of E.A.No.23 of 2010. It is not disputed that the suit in O.S.No.206 of 2009 is pending for the same relief against the 2nd respondent and now the petitioner has also filed a claim petition in E.A.No.23 of 2010 and it is still pending before the lower court. Therefore, the execution proceedings should have been commenced only after the disposal of E.A.No.23 of 2010. The lower court had not found any prima facie case over the claim of the petitioner and therefore, it did not grant any stay of E.P. However, if the claim application in E.A.No.23 of 2010 is pending before the said court, it should have been disposed of first and thereafter it has to proceed with the E.P. For that purpose the proceedings of the E.P need not be stayed as required in the application in E.A.No.23 of 2010. Admittedly the suit in O.S.No.206 of 2009 is pending in between the respondents 1 and 2. Therefore, the execution court need not wait for the result of the said suit except under the circumstances contemplated under Order 21 Rule 10 (1) and 10(4) of CPC since the claim petition in E.A.No.23 of 2010 has to be adjudicated by the execution court and therefore to proceed further in accordance with law. 6. In the aforesaid circumstances, the stay of the E.P as sought for by the petitioner before the lower court is not appreciable and therefore, it is liable to be dismissed. Consequently, the revision also fails. Therefore, the revision is dismissed at the admission stage itself with observations. No order as to costs. Connected miscellaneous petition is closed.