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2013 DIGILAW 525 (MAD)

G. H. Haneef v. P. Marimuthu

2013-01-23

G.RAJASURIA

body2013
Order: 1. C.R.P(PD)(MD)No.2764 of 2010 has been filed to get set aside the order dated 18.10.2010 passed in I.A.No.632 of 2009 in O.S.No.534 of 2009 by the learned II Additional subordinate Judge, Madurai. 2. C.R.P(PD)(MD)No.2765 of 2010 has been filed to strike off the plaint in O.S.No.534 of 2009 on the file of the learned II Additional subordinate Judge, Madurai. 3. C.R.P(PD)(MD)No.2703 of 2010 has been filed to direct the learned Additional District Munsif, Madurai Town, to dispose of E.A.No.361 of 2010 in E.P.No.153 of 1982 within a time frame fixed by this Court. 4. Heard both sides. 5. A thumbnail sketch of the germane facts absolutely necessary for the disposal of all these three Civil Revision Petitions would run thus: The revision petitioners are one and the same in all the three Civil Revision Petitions. Their vendor instituted the suit in O.S.No.379 of 1954 for evicting the defendants therein. Thereafter, E.P.No.153 of 1982 was filed by the decree holder. Pendentelite, the revision petitioners herein purchased the said property and they stepped into the shoes of the decree holder and that E.A.No.361 of 2010 was filed for impleading the legal representatives of some of the deceased petitioners in E.P. Since there was delay in disposal of E.A.No.361 of 2010, C.R.P(PD)(MD)No.2703 of 2010 was filed seeking a direction to the Executing Court to dispose of E.A.No.361 of 2010 and E.P.No.153 of 1982, within a time frame. In the meanwhile, as narrated by the learned Counsel for the revision petitioners, one other suit in O.S.No.534 of 2009 was filed by one Marimuthu at the instigation of the judgment debtors in the E.P. and an order of interim injunction was obtained. 6. According to the revision petitioners, the said suit as well as the I.A., is nothing but a mere abuse of the process of the Court. The judgment debtors in the E.P., litigated upto the Honourable Apex Court and met with their waterloo and having sensed that directly the judgment debtors in the E.P., could not resist the E.P., any more, they engineered one of the legal representatives of the deceased judgment debtor - Pakkirisamy to file such a suit in O.S.No.534 of 2009 and also to file the application for injunction and thereby, they stalled the E.P. proceedings and hence, the said suit and the I.A., should be quashed as per law. 7. 7. Whereas the learned Counsel for the first respondent in C.R.P(PD)(MD)Nos.2764 and 2765 of 2010, would implore and entreat that when an effective alternative remedy is available before the trial Court itself, there is no point in invoking Article 227 of the Constitution of India, by the revision petitioners. Accordingly, he would pray for the dismissal of C.R.P(PD)(MD)Nos.2764 and 2765 of 2010. 8. A poring over and perusal of the records would reveal that so far C.R.P(PD)(MD) No.2703 of 2010 is concerned, it is only for a mere direction to the Executing Court for speedy disposal, for which no notice to the judgment debtors/respondents herein is required. However, the learned Counsel for the revision petitioners in C.R.P(PD)(MD) No.2703 of 2010 would submit that already the Executing Court disposed of E.A.No.361 of 2010 for impleading the legal representatives of one of the deceased purchasers who are the petitioners in the E.P. 9. Hence, I would like to recollect the legal maxim "Parum est latam esse sententiam nisi mandetur executioni."[It is not enough that judgment has been given if it is not committed to execution.] 10. Accordingly, it goes without saying that the Executing Court should dispose of E.P.No.153 of 1982 as expeditiously as possible. As such, C.R.P(PD)(MD)No.2703 of 2010 is disposed of. 11. However, I am fully aware of the fact that the Executing Court is also confronted with one hurdle namely the injunction granted by the trial Court in O.S.No.534 of 2009, for which C.R.P(PD)(MD)No.2764 of 2010 has been filed by the defendants in the suit for quashment of I.A.No.632 of 2009 in O.S.No.534 of 2009 and C.R.P(PD)(MD) No.2765 of 2010 for quashment of O.S.No.534 of 2009. 12. Here, I would like to refer to Order 7 Rule 11 of the Code of Civil Procedure which is extracted hereunder: Order 7 Rule 11 of the Code of Civil Procedure: "11. 12. Here, I would like to refer to Order 7 Rule 11 of the Code of Civil Procedure which is extracted hereunder: Order 7 Rule 11 of the Code of Civil Procedure: "11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9. Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 13. A mere running of the eye over the aforesaid provision would demonstrate and display that the defendants who are dissatisfied with the plaint, can very well petition the Court under Order 7 Rule 11 of the Code of Civil Procedure for quashment. Whereupon, the Court is expected to take it on file and after hearing both sides, pass suitable orders as per law. However, instead of resorting to that procedure, the revision petitioners filed C.R.P(PD)(MD)Nos.2764 and 2765 of 2010 directly which are in my opinion, not tenable. 14. Whereupon, the Court is expected to take it on file and after hearing both sides, pass suitable orders as per law. However, instead of resorting to that procedure, the revision petitioners filed C.R.P(PD)(MD)Nos.2764 and 2765 of 2010 directly which are in my opinion, not tenable. 14. As such, liberty is given to the revision petitioners in C.R.P(PD)(MD)Nos.2764 and 2765 of 2010, to file appropriate applications under Order 7 Rule 11 of the Code of Civil Procedure before the lower Court and on such filing of applications by them under Order 7 Rule 11 of the Code of Civil Procedure, the lower Court shall do well to see that after hearing both sides, suitable orders are passed within a period of two weeks from the date of filing of such applications. In the event of the Executing Court not faced with any injunction, then the execution shall follow. 15. Accordingly, C.R.P(PD)(MD)Nos.2764 and 2765 of 2010 are disposed of as above. Consequently, the connected Miscellaneous Petition is closed. No costs.