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2014 DIGILAW 3494 (MAD)

Thamayanthi v. Nachimuthu Gounder

2014-09-19

S.VIMALA

body2014
Judgment 1. This civil revision petition has been filed by the plaintiff against the fair and final order dated 29.4.2014 passed in unnumbered E.P.C.F.R.No.4581 of 2013 in O.S.No.8 of 1975 on the file of the District Munsif, Dharapuram. 2. The plaintiff/decree holder, who is the revision petitioner herein filed a suit in O.S.No.8 of 1975 seeking a relief of maintenance and the same was decreed on 2.5.1995. Thereafter, she filed several Execution Petitions. The details of the same are furnished below: “EA. 999.80 - To transmit the decree to District Munsif Court 16.12.80 - Karur DA Rs.20,355.96 - 1180-13 EA1.324/13 - To transmit the Decree to District Munsif Court 9.12.13 - Karur – Rs.25,876.12 - 1181-13 EP105/84 - For sale of charged properties 25.3.84 DA - 29760-00 costs - 1544-50 EP 25-97 - 51200/- Notice For sale of charged 15.7.1996 - 27.2.1997 properties - 1613-00 & 20.2.1997 EA 81-98 - For issue charges for Rs.19855/- 13.2.1998 in favour of Thiru S.Balasubramaniam.Ado EA 97-98 - For receive of possession as per sale EP 25-97 - Certificate OS 8/95 23.2.1998 EP 40/98 - 37,900 For sale of charged property 1744.00 7.4.1998 - 21.4.1998 5.1.1999 Property sale on 5.1.1999 beat at Rs.20,100/- sale conducted in favour of one Thamayanthi W/o Nachimuthugounder and poundage at Rs.633/- deposited and sale certificate charges deposited for Rs.140/- in time. 16.3.1999 No sale seturicer petition filed. Sale is confirmed. Issue sale certificate. Petition is closed. EA 205-1999 For delivery of possession as DA - 17.7.1999 Mentioned in the petition Cost – Rupees as per sale certificate 30.8.2000 Possession delivered. Delivery recorded EP is terminated EA 266/2001 To transmit the Decree to District Munsif Karur, DAB 23.7. & 2.8.2001 28459.00 cost 121.00 7.8.2001 Transmit and notice in Executing Court. 12. Result of execution: The amount paid into Court Person arrested Whether Judgment debtor committed to jail If not why not If committed to jail period of stay in it Minute of other return other then arrest and payment The amount or relief still due and why execution petition is struck off the file If petition infructuous why and what extent Appeal if any against the order and execution and if so, the result. 1 2 3 4 5 6 7 17.12.1980 - Transmit subject to notice is Executing Court 9.12.1983 - Transmit Notice at Executing Court 18.7.1988 - P.S. For Rs.300/- recorded sale Batta not paid EP dismissed 12.12.1997 - Lot No.2 sold for Rs.20,500/- to one Ganesan Entire sale amount less poundage collected from the auction purchases 10.2.1998 - Sale confirmed. Issue sale certificate. Petition is closed. 17.2.1998 - Issue a cheque for Rs.19,855/- in favour of Thiru S.Balasubramanian, Advocate for petitioner. 13.2.1998 - PS memo filed and accorded. 17.2.1998 C.No.033619 dated 18.2.98 for Rs.19.855/- in favour of Thiru.S.Balasubramanian, Advocate for petitioner. 15.6.1998 - Possession delivered on 26.5.1998. Delivery & recorded Hence files petition is closed.” “TAMIL” 3. Execution Petition has been filed under Order 21 Rule 11(2) of the Code of Civil Procedure seeking transfer of the decree from the District Munsif Court, Dharapuram to the District Munsif Court, Karur and the same has been dismissed with the following endorsement: “Since the decree is not sent back to this Court, the same cannot be transmitted as prayed for by the petitioner. Hence, petition rejected.” 4. The above said order is under challenge in the revision petition. 5. It is the contention of the learned counsel for the revision petitioner that the mistake of the Court cannot cause any prejudice to the decree holder and on an earlier occasion when an Execution Petition was filed, the decree also has been filed along with the said Execution Petition and the same would have been misplaced/missed during transit. Therefore, the Executing Court ought not to have dismissed the Execution Petition filed under Order 21 Rule 11 (2) of the Code of Civil Procedure, especially when the application is filed in the Court which passed the decree. 6. The learned counsel for the revision petitioner relied on the decisions of this Court in P.G.PATTABI VS. MYTHILI AND NINE OTHERS (2010 [3] L.W 785) and FEROZ KHAN VS. S.M.S.S.A.FAROOK ALI ( 2000 (III) CTC 115 ). 7. In both the decisions, it has been held that production of Certified Copy of Decree is not a condition precedent at the time of filing of the Execution Petition. It has been further held that it is enough when the Copy of the Suit Register is filed for the purpose of taking the Execution Petition on file. 8. 7. In both the decisions, it has been held that production of Certified Copy of Decree is not a condition precedent at the time of filing of the Execution Petition. It has been further held that it is enough when the Copy of the Suit Register is filed for the purpose of taking the Execution Petition on file. 8. Without considering the fact that the decree is pending for execution from the year 1995 and that too when the decree is for maintenance, the Court below should have been lenient enough to proceed with the Execution Petition accepting the copy of the Suit Register and that has not been done. Therefore, the order passed in unnumbered E.P.C.F.R.No.4581 of 2013 in O.S.No.8 of 1975 filed under Order 21 Rule 11(2) of the Code of Civil Procedure is hereby set aside. 9. The Executing Court is directed to take the said unnumbered E.P.C.F.R.No.4581 of 2013 on file, without insisting upon the copy of the decree and by accepting the copy of the Suit Register, which, the decree holder is ready to file. 10. With the above said direction the civil revision petition is disposed of. No costs.