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2019 DIGILAW 228 (MAD)

G. Balu v. Catholic Sryiran Bank Ltd.

2019-01-23

T.RAVINDRAN

body2019
ORDER : The civil revision petition is directed against the fair and decreetal orders, dated 11.11.2009, passed in E.P.No.91 of 2009 in O.S.No.371 of 2003, on the file of the Subordinate Court, Karur. 2. The parties are referred to as per their rankings in the Trial Court for the sake of convenience. 3. The petitioner is the second defendant in O.S.No.371 of 2003. The first respondent – Bank, on the basis of the decree obtained by it against the petitioner and others in the suit, laid the execution proceedings against the defendants 1 and 2, under Order XXI Rules 37 and 38 of the Code of Civil Procedure. 4. From the materials placed on record, it is found that the Court below had ordered notice to the respondents 1 and 2 returnable by 30.04.2009. On 30.04.2009, the notice sent to the respondents 1 and 2 having been returned with the endorsement “absent affixed”, it is seen that fresh notice had been ordered to the respondents 1 and 2 through Court and post returnable by 25.06.2009. On 25.06.2009, it is found that the notice sent to the second respondent, namely, the revision petitioner had been returned as not served and the notice sent to the first respondent had been returned as not known. From 25.06.2009, the matter had been adjourned to 06.07.2009. On 06.07.2009 also, the same return as regards the revision petitioner has been pointed out i.e. the revision petitioner not served and the first respondent not known and despite the same, it is found that the Court below had chosen to set the revision petitioner ex parte on his remaining absent. It had ordered fresh notice to the first respondent and thereafter, the first respondent having not entered appearance in response to the notice sent to him, it is found that he has also been set ex parte and after recording the means evidence, the Court below had ordered the arrest of the revision petitioner as well as the first respondent. Challenging the same, the present civil revision petition has been laid. 5. As rightly putforth by the revision petitioner's counsel, as could be seen from the endorsement found in the minutes of the execution petition notes paper, the notice sent to the revision petitioner (second respondent) had not been served. Challenging the same, the present civil revision petition has been laid. 5. As rightly putforth by the revision petitioner's counsel, as could be seen from the endorsement found in the minutes of the execution petition notes paper, the notice sent to the revision petitioner (second respondent) had not been served. Despite the same having been brought to the knowledge of the Court below twice i.e. on 25.06.2009 and 06.07.2009, the Court below had proceeded to set the revision petitioner ex parte on his remaining absent when being called. It is thus noted that without any notice to the revision petitioner, he had been set ex parte by the Court below. Though the counsel appearing for the first respondent - Bank would contend that the notice sent to the revision petitioner has been returned as not claimed, however, considering the minutes of the execution petition notes paper for the hearing dates 25.06.2009 and 06.07.2009, it is seen that it has been specifically mentioned that the revision petitioner had not been served and despite the same, the Court below had set him ex parte on his remaining absent, when being called. When the revision petitioner had not been served properly, as rightly put forth by the revision petitioner's counsel, the revision petitioner cannot be expected to appear in the Court on the hearing date. It is thus found that without notice to the revision petitioner, the Court had set him ex parte in the execution proceedings and ordered further proceedings in the matter. 6. On a perusal of Order XXI Rule 37(1) of the Code of Civil Procedure, it is found that on an application preferred by the decree-holder for arresting the judgment-debtor, the Court shall instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison and as per Order XXI Rule 37(2) C.P.C., where the appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. 7. 7. Insofar as the present case is concerned, as above noted, when the revision petitioner (second respondent) had not been served in the matter, the Court below is found to have erroneously set him ex parte and proceeded further against him in the execution proceedings and thereby, the same had caused a serious disadvantage and inconvenience to the revision petitioner. In such view of the matter, in my considered opinion, the impugned order passed by the Court below as against the revision petitioner is liable to be set aside as the same having been passed without notice to the revision petitioner. 8. In support of his contentions, the revision petitioner's counsel placed reliance upon the decision in M. Muthuswamy vs. Supasri Chit Funds, Coimbatore and another, reported in 2000 (II) CTC 168 ; order, dated 11.12.2009, passed in C.R.P.(NPD) Nos.1680 to 1684 of 2009 and the order dated 24.10.1986, passed in C.R.P.No.1859 of 1983. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the case at hand. 9. In the light of the above discussions, the impugned order dated 11.11.2009, passed in E.P.No.91 of 2009 in O.S.No.371 of 2003, on the file of the Subordinate Court, Karur, is set aside aside as far as the revision petitioner is concerned and consequently, the execution proceedings laid by the first respondent – Bank in E.P.No.91 of 2009 is dismissed as against the revision petitioner alone. 10. Accordingly, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.