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2012 DIGILAW 2841 (MAD)

Minor Vinothini v. S. Selvaraj

2012-07-05

G.RAJASURIA

body2012
Judgment :- 1. Heard both sides. 2. Animadverting upon the order dated 26.08.2011 passed by the learned Subordinate Judge, Dharapuram in I.A.No.325 of 2011 in O.S.No.66 of 2007, this civil revision petition has been focussed. 3. A thumbnail sketch of the germane facts, in a few broad strokes, can be encapsulated thus: The revision petitioners herein/plaintiffs filed the suit as against the respondent/defendant and the trial court passed the decree as under: "1. that the plaintiffs each are entitled to Rs.1,000/- per month as maintenance amount against the first defendant. 2. that charge is created in respect of item No.4 of the properties. 3. with regard to other reliefs, the suit is dismissed. 4. that there be no order as to cost." (extracted as such) After the decree, it appears I.A.No.325 of 2011 was filed by the respondent/defendant with the following prayer: “TAMIL” (extracted as such) and it was resisted by the revision petitioners/plaintiffs. However, the lower court passed an order modifying the earlier judgment and decree thus: “TAMIL” (extracted as such) Being aggrieved by and dissatisfied with the modification, this civil revision petition is focussed. 4. The revision petitioners would put forth and set forth their grounds of revision, which could succinctly and precisely be set out thus: - The lower court had no jurisdiction at all to pass the impugned order after passing the decree. - The charge was created for the purpose of safeguarding the interest of the beneficiaries under the decree to get maintenance and subsequently, at the instance of the judgment debtor/defendant, the court cannot vary such an order to the detriment of the plaintiffs. 5. Whereas earlier, the respondent/defendant would try to justify the said order. 6. Subsequently before this court, both the sides in unison would state that they have arrived at a compromise, as contained in the copy of the compromise memo dated 21.06.2012 and that they want to get it recorded. In such a case, I would like to lay down the proper procedure here under: "Order 21 Rule 2 of the Code of Civil Procedure is extracted here under for ready reference: Order 21- Execution of Decrees and Orders 2. In such a case, I would like to lay down the proper procedure here under: "Order 21 Rule 2 of the Code of Civil Procedure is extracted here under for ready reference: Order 21- Execution of Decrees and Orders 2. Payment out of Court to decree-holder (1) Where any money payable under a decree of any kind is'paid out of Court 1[or decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor 1[or any person who has become surety for the judgment-debtor] also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court record the same accordingly." (emphasis supplied) A plain reading of the said section would clearly display and demonstrate that subsequent to the decree, if there is any compromise or adjustment of the decree, the same could be got recorded, by filing necessary application under Order 21 Rule 2 of CPC before the court concerned. Whereupon, it is for the court to consider the same and record it. 7. So far as the impugned order is concerned, it is ex facie and prima facie clear that it was passed throwing to winds the mandates as contained in Order 21 Rule 2 of CPC. After passing of the maintenance decree as above, the court was not justified in simply, at the instance of the defendant pass such an order varying the terms and conditions of the decree, even though it was objected to by the decree holders. 8. During the pendency of the civil revision petition, the revision petitioners filed M.P.Nos. 1 to 3 of 2012. I would like to point out that all these three applications would not be maintainable before the revisional court in view of the ratiocination adhered to by me for setting aside the impugned order passed by the court below. 9. 8. During the pendency of the civil revision petition, the revision petitioners filed M.P.Nos. 1 to 3 of 2012. I would like to point out that all these three applications would not be maintainable before the revisional court in view of the ratiocination adhered to by me for setting aside the impugned order passed by the court below. 9. In order to disambiguate the ambiguity if any, I would like to clarify as under: It is open for the parties to get their settlement recorded by approaching the lower court concerned under Order 21 Rule 2 of CPC and in such an event, it is for the court to pass suitable orders. 10. Accordingly, all the three miscellaneous petitions, viz., M.P.Nos.1 to 3 of 2012 are dismissed. 11. With the above direction, this civil revision petition is disposed of. No costs. Consequently the connected miscellaneous petition is closed.