Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4533 (MAD)

S. Rathinam v. A. Ponnusamy

2011-11-15

R.SUDHAKAR

body2011
Judgment :- 1. The Civil Revision Petition No.983 of 2008 is filed praying to interfere and set aside the proceedings in E.P.No.50 of 2007 in O.S.No.567 of 2000 on the file of the Sub Court, Tiruppur. 2. The Civil Revision Petition No.984 of 2008 is filed praying to interfere and set aside the proceedings in E.P.No.51 of 2007 in O.S.No.568 of 2000 on the file of the Sub Court, Tiruppur. 3. The first respondent herein filed two suits, viz., O.S.Nos.567 and 568 of 2000 before the Sub Court, Tiruppur and the same came to be decreed and Execution Petitions were filed as follows:- (i) E.P.No.50 of 2007 in O.S.No.567 of 2000 praying to direct the defendants to deliver the possession of the suit property to the plaintiff and (ii) E.P.No.51 of 2007 in O.S.No.568 of 2000 praying to direct the defendants to delivery the possession of the suit property to the plaintiff. In the above Execution Petitions, the third revision petitioner, one of the legal heirs of the third defendant in the suit filed E.A.No.538 of 2007 in E.P.No.50 of 2007 in O.S.No.567 of 2000 and E.A.No.539 of 2007 in E.P.No.51 of 2007 in O.S.No.568 of 2000 praying to stay the further proceedings of the above E.Ps., till the disposal of another suit O.S.No.77 of 2000 which is pending before the District Munsif Court, Palladam. 4. Present Civil Revision Petitions have been filed on 5.2.2008. Learned counsel for the revision petitioners now produced a copy of the order dated 16.9.2010 passed in C.R.P. (NPD)No.2577 of 2010. From the order dated 16.9.2010, it is evident that the Execution Court passed an order of stay in E.A.No.538 of 2007 on 15.12.2008 in E.P.No.50 of 2007. Aggrieved by the order of stay, the respondent in that E.A.No.538 of 2007, viz., the plaintiff filed CRP(NPD) No.2577 of 2010 stating that stay was granted without application of mind and it is a non speaking order. The second revision petitioner herein S.Rajkumar is a respondent in the said CRP(NPD) No.2577 of 2010. The CRP (NPD) No.2577 of 2010 was allowed holding as follows:- "5. I have given anxious thoughts to the arguments advanced on either side. The second revision petitioner herein S.Rajkumar is a respondent in the said CRP(NPD) No.2577 of 2010. The CRP (NPD) No.2577 of 2010 was allowed holding as follows:- "5. I have given anxious thoughts to the arguments advanced on either side. The application was filed by the respondent herein before the lower court in E.A.No.538 of 2007 for the grant of stay of further proceedings in the Execution Proceedings till the disposal of the suit in filed O.S.No.77 of 2000 pending on the file of the District Munsif, Palladam. During the month of December, 2007 the said application was posted by the court below on more than two occasions for filing counter but, the petitioner herein did not file his counter. The lower Court has, therefore, passed the order on 15.12.2008 and thereby allowing the execution application. It is true that the petitioner herein did not file counter despite several opportunities given as last chance. That being so, the lower court ought to have recorded the lethargy of the opposite party who did not even file the counter despite several opportunities were given. Further, the reasons put forth by the petitioner was not discussed by the court below and no order was passed on merits. The single line non speaking docket order passed by the court below is not sustainable under law. Such a practice of the court below in passing a non speaking orders were already deprecated by the Honble Supreme Court as well as this Court in several judgments, but still such kind of practice are being continued. The said practice is certainly not appreciable. Therefore, this Court is inclined to interfere with the impugned order and to set aside the same. Since the said order is set aside, it is also justifiable to remit the said application for being heard afresh after hearing both sides, whether any counter has been filed or not in the mean while, and to pass orders on merits after giving sufficient opportunities to both parties. 6. In the result, the civil revision petition is allowed; the order impugned in this revision petition is set aside; and the matter is remitted to the court below for fresh disposal as per the directions issued above. No order as to costs." The Non speaking order passed in E.A.No.538 of 2007 was set aside and the matter was remitted to the Execution Court for fresh disposal. No order as to costs." The Non speaking order passed in E.A.No.538 of 2007 was set aside and the matter was remitted to the Execution Court for fresh disposal. Counsel for the revision petitioners herein fairly states that this order has not been challenged in appeal. The present revision petitioners have accepted the order. In such view of the matter, the revision petitioners cannot plead for setting aside the execution proceedings when they have already accepted the order passed in CRP(NPD) No. 2577 of 2010 dated 16.9.2010 for fresh disposal of the E.A.No.538 of 2007 along with Execution Petition on merits. 5. Furthermore, the CRP in the present case has been listed before this Court on the first occasion on 18.3.2008 and was being adjourned from time to time for more than four years without being admitted. This clearly establishes that the revision petitioners are not serious in pursuing the matter in view of the earlier order dated 16.9.2010 passed in CRP(NPD) No.2577 of 2010. As a result, the revision petitioners are at liberty to prosecute both the matters before the Execution Court. This Court is not inclined to interfere with execution proceedings at this point of time. The revision petitioners are entitled to raise all legal pleas before the Execution Court. 6. Both the Civil Revision Petitions are disposed of as above. No costs. Consequently, connected miscellaneous petitions are closed.