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2011 DIGILAW 943 (MAD)

PN. Peruvazhuthi v. R. Saravanan

2011-02-23

S.TAMILVANAN

body2011
Judgment :- 1 Heard both the learned counsel appearing for the petitioner as well as the respondent. 2 This civil revision petition has been filed by the petitioner/decree-holder under Section 115 C.P.C, challenging the order, dated 24.6.2010 made in E.P. No. 97 of 2009 in O.S. No. 163 of 2004 on the file of the District Munsif Court, Polur, Tiruvannamalai District and to restore the same. 3 It is an admitted fact that the petitioner herein is the decree-holder. The suit in O.S. No. 163 of 2004 was filed by the petitioner against the respondent, seeking a money decree and the same was decreed, which reached finality. Pursuant to the decree, the petitioner herein filed E.P. No. 116 of 2006 before the Court below to bring the property belongs to the respondent/judgment-debtor for sale to realise the decree amount. While the Execution Petition in E.P. No. 116 of 2006 is pending, the petitioner herein filed another Execution Petition in E.P. No. 97 of 2009 under Order 21 Rule 21 and 22 and 37 of CPC, seeking arrest of the respondent/judgment-debtor, simultaneously to realise the decree amount payable to the petitioner herein. By the impugned order, the Court below dismissed the subsequent Execution Petition filed in E.P. No. 97 of 2009, seeking an order of arrest of the judgment-debtor. Aggreived by which, this revision has been preferred by the petitioner/decree-holder. 4 Learned counsel appearing for the petitioner drew the attention of this Court to Order 21 Rule 21 CPC and submitted that simultaneous action to bring the property for sale and seeking arrest of the Judgment-Debtor to realise the amount are maintainable. According to him, there is no bar to arrest the respondent/judgment-debtor to realise Jthe decree amount, apart from bringing the property for sale. Learned counsel appealing for the petitioner relied on the following decisions: 1. SatishMinocha v. Punjab National Bank, AIR 1983 Madhya Pradesh 42 2. Venkannav. Firm C. Moolchand, AIR 1961 Andhra Pradesh 63 3. KamaldhariLai v. Kamleshwari Sahay, AIR 1939 Patna 380 4. Shyamshankarv. Nathuram, AIR 1934 Nagpur 140 5 In Venkannav. Learned counsel appealing for the petitioner relied on the following decisions: 1. SatishMinocha v. Punjab National Bank, AIR 1983 Madhya Pradesh 42 2. Venkannav. Firm C. Moolchand, AIR 1961 Andhra Pradesh 63 3. KamaldhariLai v. Kamleshwari Sahay, AIR 1939 Patna 380 4. Shyamshankarv. Nathuram, AIR 1934 Nagpur 140 5 In Venkannav. Firm C. Moolchand, AIR 1961 Andhra Pradesh 63, the Andhra Pradesh High Court has held that there is nothing in the or in any other law which lays down positively that several applications for execution of a decree could not be filed‘ 6 It is not in dispute that the decree-holder can file separate Execution Petition against several judgment-debtors to realise the decree amount, for which there is no legal bar. However, the present revision is different from the facts and circumstances of the aforesaid case cited by the petitioner. Here in the instant case, the petitioner/decree-holder filed Execution Petition to bring the property of the respondent/judgment-debtor for sale. When the E.P is pending, the petitioner has filed the present Execution Petition in E.P. No. 97 of 2009 to arrest the judgment-debtor and send to him to prison. 7 Learned counsel for the respondent/judgment-debtor drew the attention of this Court to Order 21 Rule 21 of the Code of Civil Procedure, which reads as follows: “Simultan eousexecution- The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.” 8 In the impugned order, that is available at page numbers 75 and 76 of the typed set filed by the petitioner herein, the Court below has categorically averred that the petitioner has not stated any reason on the necessity of filing the fresh Execution Petition in E.P. No. 97 of 2009, seeking arrest of the respondent/judgment-debtor, while the earlier in E.P. No. 116 of 2006, seeking an order to bring the property belongs to the Judgment-Debtor for sale is pending. 9 As per the findings of the Court below, for filing subsequent E.P, to arrest the respondent/judgment-debtor, the petitioner has not stated any reason, acceptable by the Court. 10 Learned counsel appearing for the respondent/judgment-debtor submitted that the Court below has exercised its discretion, as contemplated under Order 21 Rule 21 CPC and the Court below has also assigned the reason for dismissing the subsequent E.P, seeking arrest of the judgment-debtor filed in E.P. No. 97 of 2009. 10 Learned counsel appearing for the respondent/judgment-debtor submitted that the Court below has exercised its discretion, as contemplated under Order 21 Rule 21 CPC and the Court below has also assigned the reason for dismissing the subsequent E.P, seeking arrest of the judgment-debtor filed in E.P. No. 97 of 2009. In support of his contention, the learned counsel for the respondent/judgment-debtor, cited an unreported judgment, dated 12.9.2001 arising out of S.L.P. (C) No. 8737of 2001 and S.L.P. (C) No. 3581 of 2001, wherein it has been held by the Hon‘ble Supreme Court as follows: “This Court in AhmedabadMfg. & Calico Ptg. Co. Ltd v. Ramtahel Ramanand and Others AIR 1972 SC 1598 in para 12 has stated that the power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate Courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh and Another v. Amarnath and Another 1954 SCR 1297 . This Court in BabhutmalRaichand Oswal v. Laxmibai RTarte and Another AIR 1975 SC 1297 has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact, which only a superior Court can do in exercise of its statutory power as a Court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a Court of appeal when the legislature has not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order.” 11 Learned counsel appearing for the respondent submitted that originally the petition was filed under Article 227 of the Constitution and the copy was also served on the counsel, as if the revision was filed under Article 227, however, correction was made subsequently, stating that it was filed only under Section 115 C.P.C. 12 As per Section 115 C.P.C, High Court may call for the records of any case which has been decided by any Court subordinate to the High Court, in which no appeal lies thereto, and if such subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity and the High Court may make such order in the case as it thinks fit. 13 It is well settled that revision is maintainable under Section 115 C.P.C, only when error is committed by a Court, which is subordinate to this Court by exercising jurisdiction not vested with the Court below or failed to exercise jurisdiction, so vested or when there is illegality material irregularity in the order, under the revisional jurisdiction of this Court. 14 However in the instant case, it cannot be said that the Court below was not vested with power to pass the impugned order, as contemplated under Order 21 Rule 21 C.P.C, as it is the discretion of the Court. Further, the Court below has specifically stated the reason that the petitioner herein has not stated any reason, as to why the petitioner, as decree-holder has come forward with another E.P. No. 97 of 2009, seeking arrest of the respondent/judgment-debtor, when the earlier Execution Petition, seeking an order to bring the property belongs to the respondent/judgment-debtor for sale is pending. As found by the Court below, there is no satisfactory reason assigned by the petitioner/Decree-holder to maintain the subsequent E.P, seeking arrest of the judgment-debtor, when the earlier Execution Petition is pending. As found by the Court below, there is no satisfactory reason assigned by the petitioner/Decree-holder to maintain the subsequent E.P, seeking arrest of the judgment-debtor, when the earlier Execution Petition is pending. 15 On the aforesaid facts and circumstances, I am of the view that it cannot be decided that the Court below has erroneously exercised its jurisdiction not vested in it or fail to exercise its jurisdiction or there is an illegality or material irregularity, so as to warrant any interference by this Court, under Section 115 of the Code of Civil Procedure. 16 As there is no illegality or material irregularity in the impugned order and the Court below has jurisdiction to pass the order and the same was considered on merits, I am of the view that the revision is liable to be dismissed, to meet the ends of justice. 17 In the result, the civil revision petition is dismissed. However, there shall be no order as to costs.