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2017 DIGILAW 2262 (MAD)

G. Thangakamatchi v. Mercy Thangam (Died)

2017-07-27

T.RAVINDRAN

body2017
JUDGMENT : Challenge in this Civil Revision Petition is made to the fair and decretal orders, dated 10.02.2006, passed in E.A.No.108 of 2004 in E.P.No.2 of 2003 in O.S.No.184 of 1985, by the learned District Munsif, Aruppukottai. 2. It is found that the respondents obtained a preliminary decree against the petitioners and others in O.S.No.184 of 1985 on 13.07.1989 and thereafter, it is found that the final decree was passed in the abovesaid suit on 24.10.1990. Inasmuch as the revision petitioners did not comply with the terms of the final decree passed as stated above, the respondents have moved the Executing Court to order delivery of the property in question, by way of E.P.No.2 of 2003, under Order 21 Rules 22 and 35 and Section 151 of the Code of Civil Procedure. 3. It is further found that pending the above said Execution Proceedings, the petitioners have preferred an application under Section 47 of the Code of Civil Procedure, contending that the respondents have laid the Execution Proceedings beyond the time, i.e., after 12 years of passing of the final decree and further according to them, the respondents have also not annexed or enclosed the copies of the decrees sought to be executed and also not paid the Court fees to be legally affixed on the Execution Petition and as such according to them, the Execution Petition papers had been returned by the Court and only thereafter, the respondents have complied with the defects pointed out by the office and in such view of the matter, according to the petitioners, the Execution Petition preferred by the respondents cannot be taken as proper presentation of the Execution Petition within the time stipulated under law. 4. Further, the respondents have also not preferred any petition to dispense with the production of the copies of decrees required to be filed along with the Execution Petition and the subsequent rectification of the defects will not cure the defect of improper presentation of the Execution Petition and therefore, according to them, the Execution Petition laid by the respondents is not maintainable, as proper presentation had not been made within a period of 12 years and proper presentation having been done beyond the period of 12 years, on the said ground alone, the Execution Petition is liable to be dismissed. 5. 5. Further, according to the petitioners, the parties are Christians and hence, the decrees obtained by the respondents on the basis of the joint family concept not being applicable to the Christians are invalid and on that basis, the respondents could not lay a claim in respect of the property in question and on the above ground also, the Execution Petition is also liable to be dismissed. 6. The respondents have stoutly resisted the case of the petitioners in the above said application contending that the Execution Petition has been preferred in time and further, the respondents have also rectified the defects pointed out by the Office within the time allowed by the Court and therefore, the contention put forth that the Execution Petition is barred by limitation as such, cannot be accepted. 7. The further case of the respondents is that the petitioners having not preferred any appeal against the preliminary as well as the final decrees passed in the suit, cannot maintain the application under Section 47 of the Code of Civil Procedure, without any basis and also cannot impugn the decrees passed in the suit and hence, the application is liable to be dismissed. 8. The Court below had accepted the case of the respondents and discountenanced the plea of the petitioners and accordingly, dismissed the application preferred by the petitioners. 9. Impugning the same, the present Civil Revision Petition has been instituted. 10. It is not in dispute that the respondents have obtained preliminary decree against the petitioners on 13.07.1989 and thereafter, final decree on 24.10.1990. It could therefore be seen that the respondents should have laid the Execution Proceedings within the period of 12 years against the petitioners and others. 11. Now, according to the respondents, they have preferred the Execution Petition in time. It is represented before this Court that the Execution Petition was filed on 22.10.2002. It could therefore be seen that the respondents should have laid the Execution Proceedings within the period of 12 years against the petitioners and others. 11. Now, according to the respondents, they have preferred the Execution Petition in time. It is represented before this Court that the Execution Petition was filed on 22.10.2002. That apart, the copy of the Execution Petition and the return made by the Court is also placed before this Court and therefrom, it is found that the Execution Petition papers had been returned by the Court below, directing the respondents to file the preliminary decree and final decree copies and also to mention the provision of law under which the Execution Petition came to be instituted and to add the legal heirs of the deceased first respondent and to affix the Court fees required and to comply with the other defects pointed out by the Office. Thereafter, it is found that the papers had been represented and again returned and finally, it is seen that only during 2003, the Execution Petition has been taken on file as E.P.No.2 of 2003. 12. In the light of the above position, it is found that the respondents, as such, have not properly presented the Execution Petition, particularly, by paying the correct Court fees and only thereafter, i.e., after the papers had been returned by the office of the lower Court, directing them to pay the Court fees, it is found that the respondents have affixed the required Court fees. The Court below had not sent the Execution Petition papers and the connected records along with the records sent to this Court for this Civil Revision Petition. 13. Be that as it may, it is found that when the first return had been made by the Office, dated 15.11.2002, it is obvious that the Court fees required to be affixed in the Execution Petition has not been paid by the respondents within the time stipulated under law, i.e., within a period of 12 years, at the time of filing of the Execution Petition. That apart, it is also found that the copies of the decrees have also not been enclosed along with the Execution Petition at the first instance. That apart, it is also found that the copies of the decrees have also not been enclosed along with the Execution Petition at the first instance. In such view of the matter, according to the petitioners, the Execution Petition papers, even assuming that the same had been presented well within the time allowed by law, inasmuch as the sine qua non essentials for construing the presentation as proper presentation, not having been done by the respondents, particularly, they having not paid the requisite Court fees and also not enclosed the copies of the decrees and also not preferred the Execution Petition against the legal heirs of the deceased first respondent etc., would go to show that in an improper manner, the Execution Petition has been laid on the last date to save the limitation. In such view of the matter, as seen above, the Court below had returned the Execution Petition papers. 14. In the light of the abovesaid undisputed position, it is contended by the learned counsel for the petitioners that when the respondents have not filed the Court fees required to be affixed on the Execution Petition at the time of presentation of the same, the mere filing of the Execution Petition within the time allowed by law cannot be deemed to be the proper presentation of the Execution Petition at that point of time and therefore, it is contended that inasmuch as the respondents have complied with the defects, particularly, the payment of the Court fees only beyond the period of 12 years, it is argued that the Court below had erred in taking the Execution Petition on file without providing an opportunity to the respondents to place their submissions with reference to the same and in such a position, it is contended that the subsequent rectification of the defects by the respondents, would not cure the improper presentation of the Execution Petition and therefore, sans notice to the petitioners with reference to the same, inviting their objections, the Execution Petition laid by the respondents is liable to be dismissed. 15. With reference to his above contentions, the petitioners' counsel straightaway placed reliance upon the decision of a Division Bench of this Court reported in 2003 (2) MLJ 305 [K. Natarajan Vs. P.K. Rajasekaran]. 16. 15. With reference to his above contentions, the petitioners' counsel straightaway placed reliance upon the decision of a Division Bench of this Court reported in 2003 (2) MLJ 305 [K. Natarajan Vs. P.K. Rajasekaran]. 16. In the light of the above decision, as to the judicial discretion that could be exercised by the Court, when the plaint and other papers are presented improperly, particularly, without affixing the necessary Court fees to be affixed thereon, the Division Bench of this Court has enumerated the steps to be followed by the Court below in the following manner. ''Civil Procedure Code (V of 1908), Sec.149- Deficiency in payment of Court-fee - Power of the Court to extend time – Suit for recovery of money filed on the last date of limitation – One Rs.1 paid as Court fee – Extension of time sought for and deficit Court – fee paid with delay – The discretionary power of the Court to be exercised – Procedure is laid down for exercising the judicial discretion under Sec.149. The Court deems it necessary to clarify the legal position and lay down the procedure to be followed as under: (1) Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955; (2) The word 'document' employed in Sec.149 of Code of Civil Procedure would include plaint also; (3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays); (4) If the suit is presented on the last date of limitation affixing less Court-fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee; (5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike; (6) The discretion referred to in Sec.149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law: (7) But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard; (7 A) In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime (2 of 3 weeks), which also falls within the period of limitation, but the plaint is represented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, not-withstanding the fact that the plaintiff has paid substantial Court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee; (8) In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time limitation (i.e., the plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered; (9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in. But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.); (10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law.'' 17. In the light of the above said legal position, when it is prima facie found that the respondents have not enclosed the copies of the decrees along with the Execution Petition and also not filed the petition along with Execution Petition to dispense with the same and obtained the orders of the Court with reference to the same and further, not also paid the Court fees required to be affixed on the Execution Petition on the date of presentation of the same and further, when it is found that the deficit Court fees is paid by the respondents concerned beyond the period of limitation or in other words, in a case where part of the time granted to pay the deficit Court fees falls outside the period of limitation, the Court below is incumbent upon to give notice of the same to the opposite side and invite their objections and thereafter, considering the case of the party as to his entitlement to pay the deficit Court fees even beyond the period of limitation and only thereafter, should take action or the petition on file. 18. As far as this case is concerned, it is found that the petitioners have not been sent any notice before the Execution Petition is taken on file, particularly, when the Execution Petition had been returned for the defects above-mentioned. Therefore, it is found that the contention of the petitioners' counsel merits acceptance. 19. 18. As far as this case is concerned, it is found that the petitioners have not been sent any notice before the Execution Petition is taken on file, particularly, when the Execution Petition had been returned for the defects above-mentioned. Therefore, it is found that the contention of the petitioners' counsel merits acceptance. 19. Inasmuch as the Execution Petition papers had not been placed before this Court or sent by the Court along with the case records for this Civil Revision Petition and it is not clear as to when actually, the Court fees had been paid by the respondents on the Execution Petition, as such, in the interest of justice, I am of the considered opinion that the matter should be remitted back with a direction to the Executing Court to take the application on file, preferred by the petitioners in E.A.No.108 of 2004 and thereafter, considering the background or the factual scenario, under which, the Execution Petition is laid by the respondents and dispose of the matter taking into consideration the legal position adumbrated by the Division Bench of this Court in the abovesaid decision. 20. In view of the foregoing reasons, the impugned order dated 10.02.2006, passed in E.A.No.108 of 2004 in E.P.No.2 of 2003 in O.S.No.184 of 1985, by the learned District Munsif, Aruppukottai, is set aside and the matter is remitted back to the lower Court, for deciding the same afresh, in the light of the abovesaid discussions, and particularly, considering the judicial discretion to be exercised by the Court in such matters, as adumbrated by the Division Bench in the decision reported in 2003 (2) MLJ 305 [cited supra]. Accordingly, this Civil Revision Petition is disposed of. No costs.