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2013 DIGILAW 2030 (MAD)

B. Raman v. Raja K. Ranganathan

2013-06-17

K.RAVICHANDRA BAABU

body2013
ORDER 1. All these Civil Revision Petitions are filed by the judgment debtor in O.S.No.263 of 2004 on the file of the Sub Court, Coimbatore filed by the respondents herein for recovery of money based on a promissory note. 2. Heard the learned counsels appearing for the petitioner as well as the respondents. 3. The respondent herein filed the said suit and the trial court passed an exparte decree on 19.10.2005. After two years from the date of the decree, the respondent/decree holder filed execution petition on 18.06.2007. Thereafter the petitioner/judgment debtor filed a petition in I.A.No.261 of 2006 to set aside the exparte decree. The said I.A. also came to be dismissed on 21.06.2006. During the pendency of the suit, there was an order of attachment before judgment of the property belonging to the petitioner as early as 30.11.2004. It appears that the petitioner did not take any steps as against that order. Even after an exparte decree came to be passed on 19.10.2005 he filed an application to set aside the same only belatedly and the same was also dismissed on 21.06.2006. The petitioner did not take any steps to restore the said I.A. immediately and however filed E.A.No.496 of 2009 under Order 21 Rule 9 and Section 151 CPC to restore the I.A.No.261 of 2006 which came to be dismissed on 21.06.2006 and also E.A.No.497 of 2009 under Section 5 of the Limitation Act to condone the delay of 1067 days in filing the petition to restore I.A.No.261 of 2006. Apart from filing these two applications before the Executing Court, the petitioner also filed E.A.No.493 of 2009 under Section 5 of the Limitation Act to condone the delay of 184 days in setting aside the exparte order passed in E.P.No.251 of 2007 on 31.03.2009. Another E.A.No.494 of 2009 was filed seeking for adjournment of the sale in execution proceedings and for stay of further proceedings. E.A.No.495 of 2009 is filed to set aside the exparte order dated 31.03.2009 passed in the said execution proceedings. All these five applications were taken up by the Court below and a common order was passed whereby all the applications were dismissed by holding that the petitioner did not show sufficient cause to condone the delay. Challenging the said common order, the above Civil Revision Petitions are filed before this Court. 4. All these five applications were taken up by the Court below and a common order was passed whereby all the applications were dismissed by holding that the petitioner did not show sufficient cause to condone the delay. Challenging the said common order, the above Civil Revision Petitions are filed before this Court. 4. On 31.01.2013 this Court, while granting interim stay, imposed a condition on the petitioner to deposit a sum of Rs.1 lakh to the credit of O.S.N0.263 of 2004 within a period of four weeks from the date of receipt of copy of the said order. It is also made clear in the said order that failure to comply with the condition would result in stay granted by this Court getting vacated automatically without further reference to this Court. It is now represented by the learned counsel appearing for the petitioner that the condition imposed by this Court has not been complied with by the petitioner. 5. The learned counsel appearing for the petitioner filed a counter affidavit and submitted that in the execution petition, the property of the petitioner was sold in the Court auction on 29.09.2010 for a sum of Rs.3,01,000/-and the sale was also confirmed and a sale certificate has been issued to the auction purchaser on 29.11.2010. The auction purchaser filed E.A.No.93 of 2011 for delivery of the property purchased by him and the Court below has ordered the petition and the auction purchaser has also taken delivery of the property in the month of April 2013 itself. Thus it is submitted that the entire proceedings have been completed and consequently the present Civil Revision Petitions do not have any merits. 6. Before considering the order passed by the Court below in respect of E.A.Nos.493 to 495 of 2009, let me consider the applications filed by the petitioner in E.A.Nos.496 and 497 of 2009 before the Court below. Those two applications were filed by the petitioner herein, one to restore I.A.No.261 of 2006 and other one to condone the delay of 1067 days in filing the petition to restore the said I.A. The undisputed fact in this case is that the respondent filed a suit against the petitioner for recovery of a sum of Rs.2,08,166/-based on a promissory note. Due to non-appearance of the petitioner on 19.10.2005, an exparte decree came to be passed against him. Due to non-appearance of the petitioner on 19.10.2005, an exparte decree came to be passed against him. The petitioner filed I.A.No.261 of 2006 to set aside the said exparte decree. The said I.A. also came to be dismissed on 21.06.2006. Only to restore the said I.A., that too, after a delay of 1067 days the petitioner herein had filed E.A.Nos.496 and 497 of 2009 strangely before the execution court. I failed to understand as to how those two applications were filed before the execution court when they were have filed for restoration of the I.A. filed before the trial court seeking to set aside the exparte decree. In my considered view those two applications in E.A.Nos.496 and 497 of 2009 are not at all maintainable before the execution court as the power and jurisdiction in respect of both the proceedings are not one and the same and consequently filing applications before the execution court, which are undoubtedly within the domain and jurisdiction of trial court are not at all maintainable. Therefore the order of dismissal passed by the Court below in respect of those two applications in E.A.Nos.496 and 497 of 2009 does not warrant interference. 7. While coming to other three applications it is seen that the court below has taken note of the fact that the petitioner is fully aware of the execution proceedings during the period from 27.10.2005 to 31.10.2007. The finding rendered by the court below at Paragraph Nos.7 and 8 would show that the petitioner has not shown any justifiable cause to condone the delay in filing the setting aside petitions. When the fact remains that as on date an exparte decree passed against the petitioner stands and even the application filed by him to set aside the exparte decree got dismissed and no proper application has been filed to restore the same so far, I am unable to appreciate the contentions of the petitioner in filing these applications in E.A.Nos.493 to 495 of 2009 before the Court below for setting aside the exparte order made in E.P.No.251 of 2007. The petitioner's attitude throughout the proceedings would only show that he is interested in dragging on the proceedings one way or other and not at all interested in contesting the matter on merits. The petitioner's attitude throughout the proceedings would only show that he is interested in dragging on the proceedings one way or other and not at all interested in contesting the matter on merits. It is also to be noted that even when this Court has granted stay subject to condition to deposit a sum of Rs.1 lakh within the time stipulated, the petitioner has not utilised the opportunity and on the other hand did not make such deposit within the time stipulated and consequently allowed the execution proceedings to go on. Hence, it is seen, the property of the petitioner was sold in Court auction on 29.09.2010 and the auction purchaser who got the sale certificate on 29.11.2010 also got the delivery of the property by filing an application in E.A.No.93 of 2011. When that being the factual position and by considering all the facts and circumstances of the case as well as the order passed by the court below, I find no merit in all these Civil Revision Petitions and the Court below has rightly rejected the applications filed by the petitioner. 8. Accordingly, these Civil Revisions Petitions are dismissed. No costs. Consequently connected miscellaneous petitions are closed.