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2012 DIGILAW 2728 (MAD)

Deivasigamani v. T. K. Kuppusamy Grounder

2012-06-29

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 23.8.2010 passed by the Principal Sub-Court, Erode, in E.A.No.47 of 2010 in E.P.No.26 of 2004 in O.S.No.253 of 1976, this revision petition has been filed. 2. Broadly but briefly, narratively but precisely, the germane facts in a few broad strokes can be encapsulated thus: (i) The Executing Court in E.P.26 of 2004 passed the order dated 7.1.2009 as against the revision petitioner herein/judgment debtor, imposing a fine of Rs.2000/-and in default to undergo imprisonment for 15 days. (ii) There was non-compliance with the said order in paying the fine amount. Whereupon E.A.No.47 of 2010 was filed to get extension of time to pay the fine amount. (iii) The Executing Court dismissed the said E.A. 3. Being aggrieved by and dissatisfied with the said order, this civil revision petition has been focussed. 4. The learned counsel for the revision petitioner would submit that the revision petitioner/defendant/judgment debtor was under the belief that his advocate would take steps to prefer appeal or revision as against the order imposing fine. But the order copy was not obtained in time and steps were not taken and that alone resulted in the delay. 5. The learned counsel for the respondent herein/decree holder would submit that the explanation sought to be given is fraught with falsity and there is no truthfulness in it. The revision petitioner herein/defendant deliberately violated the order of injunction and that alone resulted in passing such order by the Executing Court. 6. The learned counsel for the revision petitioner/defendant/judgment debtor would explain and expound by pointing out that subsequently in one other suit relating to the same property, the revision petitioner herein fought up to this Court and met with his waterloo and hereafter there is no likelihood of the revision petitioner committing any breach of the order of any Court. Accordingly, he would pray for leniency being shown towards the revision petitioner. 7. The learned counsel for the respondent/decree holder, by inviting the attention of this Court to the parameters of Section 148 of C.P.C. would develop his argument to the effect that the Court itself cannot extent the time stipulated in its order; whereas, the learned counsel for the revision petitioner/judgment debtor would cite the following decision of the Honourable Apex Court: 2010 SAR (Civil) 827 S.C. - D.V.PAUL V. MANISHA LALWANI, certain excerpts from it would run thus: 17. Aggrieved by the above order, the appellant preferred MCC No. 7148 of 2009, which was dismissed by the High Court on 30-7-2009, relying upon the order passed by this Court on 5-5-20091 and that passed by the High Court on 17-6-2009. The present appeals assail the correctness of the said two orders. 18. We have heard the learned counsel for the parties at length and perused the record. An inadvertent mistake in the deposit of the amount directed by the High Court has turned out to be a fertile ground for time-consuming and expensive litigation before this Court and the courts below. 19. The essence of the matter is that the High Court had directed deposit of Rs. 10,000 towards compensation payable to the respondent landlady for the damages caused to the premises in the occupation of the appellant tenant. The appellant's case was that instead of the deposit of the said amount before the trial court as directed by the High Court, he had committed a bona fide mistake in getting the bank draft for the said amount prepared in the name of the respondent and sending the same to her under registered AD. In support of that submission, the appellant had produced material to show that a bank draft had indeed been prepared in the name of the respondent and dispatched to her at her Jabalpur address. Since the respondent denied the receipt of such a draft, the question whether or not the draft had been sent and if so received by the respondent through her maidservant fell in issue for purposes of determining whether the appellant had complied with the directions contained in the decree. 20. The High Court directed an inquiry into the matter by its interim order dated 6-12-2007. This Court in appeal against the said order considered such an inquiry to be unnecessary. This Court proceeded on the basis that since the deposit was directed to be made in the trial court, any other form of deposit would necessarily stand excluded including a direct payment to the landlady by way of a draft. This Court held that since the deposit had not been made, the execution could go on without waiting for the result of the inquiry, as a condition precedent. This Court held that since the deposit had not been made, the execution could go on without waiting for the result of the inquiry, as a condition precedent. These observations made by this Court were understood by the High Court to mean as though the question whether time for making of the deposit could be extended stood foreclosed. That was not in our opinion a correct appreciation of the order passed by this Court. MCC No. 1876 of 2007 made a prayer for extension of time for making of the deposit. Even assuming that an inquiry into the making of the payment by the appellant directly to the respondent was not necessary, the question that was still required to be answered was whether time for deposit of the amount in accordance with the directions issued by the High Court could be extended. Unfortunately, the High Court did not advert to that question. It appears to have proceeded on the assumption that since an inquiry into the payment of the amount directly to the respondent was not favoured by this Court and the executing court was directed to go on with the execution, nothing really survived for consideration in MCC No. 7148 of 2007. 21. That was, in our opinion, not wholly correct. This Court was only dealing with the interim order passed in MCC No. 7148 of 2007 on 30-7-2007. Even if the said order was set aside, the question whether the appellant was entitled to extension of time for making of the deposit would have continued to remain relevant and had to be answered by the High Court on its own merits. The High Court failed to do so while disposing of MCC No. 1876 of 2007, which was not correct. 8. A mere poring over and perusal of the above excerpts including the whole judgment would indicate that the time stipulated in orders of this nature by the Court can rightly be extended and the embargo as contained in Section 148 of the C.P.C. cannot be pressed into service. As such, no more elaboration in this regard is required. 9. 8. A mere poring over and perusal of the above excerpts including the whole judgment would indicate that the time stipulated in orders of this nature by the Court can rightly be extended and the embargo as contained in Section 148 of the C.P.C. cannot be pressed into service. As such, no more elaboration in this regard is required. 9. Considering the pro et contra, I am of the considered view that the time could be extended for complying with the order dated 7.1.2009 passed in E.P.No.26 of 2004; however, I would like to modify the said order to the effect that the payment should be under the caption 'compensation' instead of the one under the nomenclature 'fine', payable by the revision petitioner/judgment debtor to the respondent/decree holder. Accordingly, the revision petitioner shall pay the enhanced compensation of Rs.5000/-(rupees five thousand) to the respondent/decree holder within 15 days from this date, failing which, the lower Court shall issue warrant for detaining the revision petitioner/judgment debtor in civil prison for 15 days, after arresting him. 10. The civil revision petition is ordered accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.