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2012 DIGILAW 1903 (MAD)

Kunjayee @ Kaliyammal v. A. P. Palanisamy

2012-04-16

G.RAJASURIA

body2012
Judgment :- 1. Succinctly and summarily, the relevant facts which are necessary for the disposal of this petition would run thus:- a) The parties are referred to here-under according to the litigative status and ranking in the lower court. b) The revision petitioner herein namely, Kunjaee @ Kaliyammal, is the judgment debtor in R.E.P.No.18 of 2011 on the file of the Sub Ordinate Court, Tiruchengode and the respondent herein namely, A.P. Palanisamy is the decree holder therein who filed execution petition for getting the sale deed executed in his favour through court and in pursuance of the specific performance decree obtained in O.S.No.331 of 2004 on the file of Sub court, Namakkal; while so, the revision petitioner herein filed R.E.A.No.38 of 2011 under Section 10 of Civil Procedure Code for getting the execution proceedings stayed in view of the pendency of the suit i.e., O.S.No.113 of 2011 filed by her in the Sub Ordinate Court, Tiruchengode. 2. Challenging and inveighing the two decrees including the decree passed in specific performance suit in O.S.No.331 of 2004, on the file of Sub court, Namakkal, the matter was contested. Whereupon the court appropriately and correctly held that the execution proceedings cannot be stayed under Section 10 of Civil Procedure Code for the reason that the said section was not at all applicable to the factual matrix of the execution proceedings. 3. Being aggrieved by and dissatisfied with the said order, this revision has been focussed by the revision petitioner/judgment debtor on various grounds. 4. The revision petitioner placing reliance on the grounds of revision would put forth and set forth his submissions, which could succinctly and pithily be set out thus: The revision petitioner herein is an illiterate lady who did not know how to sign; while so her relatives fraudulently obtained two decrees as against her, that is the partition and the specific performance decrees. Now specific performance decree is sought to be enforced as against her. In such an eventuality in order to overcome those two decrees, the revision petitioner filed a comprehensive suit in O.S.No.113 of 2011, on the file of Sub Court, Tiruchengode, challenging and impugning the same. 5. During the pendency of the comprehensive suit, the revision petitioner wanted the said executing court to stay the execution proceedings virtually under Order 21 Rule 29 of Civil Procedure of Code. 5. During the pendency of the comprehensive suit, the revision petitioner wanted the said executing court to stay the execution proceedings virtually under Order 21 Rule 29 of Civil Procedure of Code. The application was filed under Section 10 of Civil Procedure of Code but the court below in its cryptic order, dismissed the same. Mere quoting or citing or invoking of a wrong provision of law would not be fatal to any prayer. However, the lower court without viewing the matter, in a holistic manner dismissed the said application like throwing the baby along with the bathe water. Accordingly, the learned counsel for the revision petitioner would pray for setting aside the order of the lower court. 6. Whereas the learned counsel for the respondent in a bid to make mince of the arguments as put forth on the side of the revision petitioner would pilot his arguments the gist and kernal of the same would run thus: a) The revision petitioner herein is bent upon initiating various proceedings mendaciously and falsely. It was she, who consciously entered into an agreement to sell and thereafter in the suit filed by the respondent for specific performance of the said agreement to sell, she agreed for a compromise, which emerged, ultimately in the decree; thereafter, the execution petition was filed, for executing the decree. At that time, by way of stalling the proceedings, she did choose to file Interlocutory application which the court properly and correctly dismissed it warranting no interference in this revision. 7. The points for consideration is as to whether the lower court wrongly dismissed the said R.E.A.No.38 of 2011 unjustifiably and erroneously warranting interference in revision? 8. Pithily and precisely, obvious and axiomatically, Section 10 of Civil Procedure of Code is not applicable in the facts and circumstances of the case in execution proceedings as correctly pointed out by the lower court. The concept 'Res sub judica' as envisaged u/s.10 of Civil Procedure of Code cannot be invoked. However, the core question arises as to why the lower court did not ignore the wrong provision of law cited therein and render justice under Order 21 Rule 29 of Civil Procedure Code. The concept 'Res sub judica' as envisaged u/s.10 of Civil Procedure of Code cannot be invoked. However, the core question arises as to why the lower court did not ignore the wrong provision of law cited therein and render justice under Order 21 Rule 29 of Civil Procedure Code. I fully agree with the learned counsel for the petitioner that mere wrong citing of the provision of law would not be fatal to any petition; however, the court should kept informed as to what actual provision of law, the petitioner is seeking to rely upon to get the relief. No doubt u/s.10 of Civil Procedure of Code as well as under Order 21 Rule 29 stay could be obtained but the ingredients of those provisions of law is different from each other. There is nothing to indicate on the side of the revision petitioner as to what section she eventually wanted to invoke. The contents of the affidavit accompanying Section 10 of Civil Procedure of Code, by and large applies to Order 21 Rule 29 of Civil Procedure of Code also. However, unless the litigant canvasses his or her case on a proper line, the question of lower court suo mottu ushering in one another provision of law may not arise. On balance in this factual matrix, the finding of the lower court that the petition under Section 10 of Civil Procedure of Code was not maintainable, cannot be found fault with. If at all Order 21 Rule 29 of Civil Procedure of Code, in the opinion of revision petitioner concerned has to be invoked, the revision petitioner is at liberty to file necessary application and it is for the court to consider it afresh untrammelled and uninfluenced by any of the observations made by this Court in dismissing this revision petition. 9. With the above observation, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is also closed. There shall be no order as to costs.