Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3620 (MAD)

SEEMADEVI v. DEVASENAPATHY

2018-10-08

C.SARAVANAN

body2018
JUDGMENT C. SARAVANAN, J. 1. The above Civil Revision Petitions have been filed to set aside the common order dated 14.06.2018 passed in E.A.Nos.27 and 28 of 2018 in E.P.No.126/2001 in O.S.No.322/1997 on the file of the learned Principal Sub-Judge at Puducherry. 2. The petitioners in the above Civil revision petitions are wife and daughter of the 1st respondent/defendant who is the judgment debtor in O.S.No.322 of 1997. 3. One, Mr.Subrayan had originally filed the above suit. A preliminary decree was passed on 20.2.1998. There after, the said suit came to be decreed on 26.04.1999. Subsequently, the decree was made over in favour of 2nd respondent on 29.05.2000. 4. Thereafter, the 2nd respondent initiated execution proceedings vide E.P.126 of 2001. The petitioners were arrayed as respondents pursuant to an order dated 26.06.2009. The petitioners were set ex parte on 24.01.2018. 5. Under these circumstances, E.A. Nos. 27 and 28 of 2018 came to be filed by the petitioners. The first petitioner had filed an affidavit on behalf of herself as well as the second petitioner and the 1st respondent to set aside the order dated 24.01.2018, setting them ex parte and to stay the entire execution proceedings. The application was dismissed vide the impugned order dated 14.6.2018 on the ground that the execution proceedings have been pending since 2001 and the decree holder has been denied the fruits of the decree. 6. Heard Mrs.Hema Sampath, learned senior counsel appearing for the revision petitioners and Mr.I.C.Vasudevan, learned counsel for the second respondent and perused the materials available on record. 7. The 2nd respondent herein has vehemently contested that the prayer in civil revision petition on the ground that the petitioners are protracting and delaying the execution proceedings. 8. It is further submitted that the petitioners have no right over the property and cannot resist the execution and proclamation of sale which has already been ordered. 9. The 2nd respondent herein has also stated that parallel proceedings made in O.S.No.366 of 2006 was filed before the First Additional District Munsif, Puducherry, wherein, the petitioners have filed a suit against the husband/first respondent which was dismissed by judgment and decree dated 06.04.2018. 10. Learned Counsel appearing for the 2nd respondent also drew my attention to the appeal filed by the petitioners herein against the said judgment and decree of the First Additional District Munsif Court filed by the petitioner. 11. 10. Learned Counsel appearing for the 2nd respondent also drew my attention to the appeal filed by the petitioners herein against the said judgment and decree of the First Additional District Munsif Court filed by the petitioner. 11. It is his submission that the Civil revision petition is not a bona fide and the petitioners herein cannot arrogate on themselves to protect the property of the 1st respondent and to make payment to the second respondent, in the absence of the first respondent. He further submitted that the amounts cannot be paid by the third party like the petitioners who are third party to the proceeding. 12. On Considering the above submissions, it is evident that the 1st respondent had borrowed money from different people and in some of the proceedings, judgment and decree came to be passed against the 1st respondent. 13. As far as this case is concerned, one Subrayan, S/o. Vinayaga Mudaliar filed O.S.No.322 of 1997 against the 1st respondent. The said suit was decreed on 26.04.1999. 14. The petitioners herein who are the wife and daughter of the 1st respondent-Judgment debtor are in a possession of the property which was proposed to be sold in a court auction. Petitioners are not a third party to the proceedings as they have been impleaded in the Execution Petition. Therefore, the contention that they are third parties and cannot make payments to the 2nd respondent 15. On the contrary, the 2nd respondent stepped into the shoes of the decree holder and has a limited right to receive the decree amount together with interest. 16. Only if the amount is not paid, he can have the property auctioned in the execution proceeding. 17. At the time of admission of the C.R.Ps, the petitioner was permitted to deposit the entire decreed amount together with the interest to stay the sale of property through the Court auction. The 2nd respondent is entitled to receive the same. 18. Accordingly, the civil revision petitions are being allowed with the following observations:- (i) The impugned order dated 14.06.2018 passed in E.A.Nos.27 and 28 of 2018 in E.P.No.126 of 2001 in O.S.No.322 of 1997 by the learned Principle Sub-Judge, Puducherry is hereby set aside. (ii) The 2nd respondent to whom the decree was made over is entitled to receive the amounts deposited. (ii) The 2nd respondent to whom the decree was made over is entitled to receive the amounts deposited. (iii) In case of any discrepancy in the amounts paid by the petitioners, the suitable petition can be filed for appropriate orders. (iv) Execution proceedings vide E.P. No.126 of 2001 pending before the Principal Sub Judge s Court is directed to be terminated as the claim of the 2nd respondent in the as per the amount decreed in O.S. No.322 of 1997 stands satisfied. Consequently, connected miscellaneous petition is closed. No costs.