Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1902 (MAD)

Chinnakannu v. K. Barathal Chettiyar

2012-04-16

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 10.02.2011 passed by the learned Principal Subordinate Judge, Tiruvannamalai in E.A.No.182 of 2010 in E.A.No.228 of 2009 in E.P.No.48 of 2008 in O.S.No.72 of 2006, this civil revision petition is focussed. 2. The parties are referred to here under according to their litigative status and ranking before the lower Court. 3. A synoptic and succinct narration of facts, absolutely necessary and germane for the disposal of this revision would run thus: (i) O.S.No.72 of 2006 was filed by one K.Panduranga Chettiar as against three persons, viz., C.Elumalai, E.Chinnakannan and K.Janaki Ammal seeking the following reliefs:To pass a judgment and decree - (i) Directing the first defendant to pay the plaintiff a sum of Rs.2,67,580/- due under the suit A and B pro-notes with future interest. (ii) To declare the mortgage deed dated 07.03.2006 executed by the defendant-1 and 2 in favour of the third defendant is void and enforceable. (iii) To direct the defendants to pay the plaintiff the costs of the suit. (extracted as such) and the suit was decreed as under: (1) that the first defendant do pay to the plaintiff a sum of Rs.2,66,580.00 (Rupees two lakhs sixty six thousand five hundred and eighty only) with interest on Rs.2,40,000/-at the rate of 9% per annum from the date of plaint till the date of decree and thereafter at the rate of 6% per annum till the date of realisation. (2) That the mortgage deed, dated 07.03.2006 executed by the first and second defendants in favour of the third defendant is hereby declared as void and unenforceable. (3) That the defendants do pay to the plaintiff, a sum of Rs.25,331.50 being the costs of this suit. (iv) Subsequently, it appears that the decree holder attached the property by asserting that the property belonged to Ezhumalai and ultimately the suit property was sold in court auction sale and the respondent herein, viz., Barathal Chettiyar happened to be the auction purchaser and the sale was confirmed in his favour and he got the sale certificate. Thereafter, he filed E.A. for obtaining delivery of possession of the suit property. At that stage, R.E.A.No.182 of 2010 was filed by the revision petitioner herein, viz., Chinnakannu, who was D2 in the suit. Thereafter, he filed E.A. for obtaining delivery of possession of the suit property. At that stage, R.E.A.No.182 of 2010 was filed by the revision petitioner herein, viz., Chinnakannu, who was D2 in the suit. After entertaining evidence and hearing both sides, the court dismissed the said application as against, which this revision has been focussed on various grounds. 4. When the matter came up for hearing, the learned counsel for the revision petitioner placing reliance on the grounds of revision would submit that the dismissal of R.E.A.No.182 of 2010 filed under Order XXI Rule 97 of the Code of Civil Procedure was nothing but a summary rejection by the Executing Court on the misconception as though the application under Order XXI Rule 97 of the Code of Civil Procedure would not be maintainable because the revision petitioner happened to be one of the defendants. As such no appeal need be filed and straightaway revision could be filed. 5. Whereas, in a bid to torpedo and pulverise and to make mincemeat of the arguments as put forth and set forth on the side of the revision petitioner, the learned counsel for the respondent/auction purchaser would pilot his argument, the pith and marrow of the same would run thus: Whatever be the order of the lower court, it amounts to dismissal of the petition and even if it is taken as rejection of the petition, it has to be deemed to be rejection of the plaint and appeal alone would lie as against the said dismissal order and not revision. 6. The point for consideration is as to whether as against the order passed by the court below in R.E.A.No.182 of 2010, a revision or an appeal would lie? 7. Order XXI Rule 103 of the Code of Civil Procedure is reproduced here under for ready reference: "103. Orders to be treated as decrees -Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." A mere running of the eye over the said provision and also the precedents emerged there under would highlight and spotlight the fact that only appeal would lie and not revision. Even for argument's sake it is taken that the I.A, which was deemed to be the plaint was rejected as per Order XXI Rule 103 CPC, it is only a decree. Hence, only appeal would lie and not revision. 8. Accordingly, this point is decided. 9. In the result, there is no merit in this revision and accordingly, the same is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 10. On hearing the order pronounced, the learned counsel for the petitioner would pray for return of the certified copy of the orders filed before this court, so as to enable him to prefer appeal. 11. Hence, the Registry is directed to return the certified copy of the orders filed along with this revision immediately to the learned counsel for the petitioner.