This Civil Revision Petition is filed against the fair and final order passed in E.P.No.48 of 2007 in I.A.No.111 of 2004 in O.S.No.40 of 2003 dated 05.02.2010 on the file of the District Munsif Court, Mettupalayam.
2. The Petitioner is the 2nd defendant, the 1st respondent is the plaintiff, the 2nd respondent is the 2nd defendant and the respondents 3 to 5 are the defendants 3 to 5 in O.S.No.40 of 2003. The 1st respondent filed the suit for partition and separate possession. The 1st respondent also filed I.A.No.111 of 2004 for directing the petitioner to deposit the monthly rent of Rs.600/- into Court regularly till the suit comes to finality. After contest the said I.A. was allowed. The petitioner did not pay the amount as ordered by the learned Judge. Hence, the 1st respondent filed Execution Petition in E.P.No.48 of 2007 to issue Notice of arrest against the petitioner to pay the total amount of Rs.10,150.50, failing which, order of arrest to be passed to detain him in civil prison.
3. The petitioner opposed the said application on the ground that order passed in I.A.No.111 of 2004 is not an executable order and only after passing of the final judgment in the suit, the same could be executed. The petitioner is in occupation as a mortgagee and not as a tenant. There are other defendants and respondent filed the Execution Petition only against the petitioner.
4. The learned Judge, referring order XXI Rule 30 of C.P.C. held that EP is maintainable and order in IA.No 111 of 2004, is only against the petitioner and the petitioner/2nd defendant has not challenged the same by way of appeal and allowed Execution Petition.
5. Heard both sides and perused the materials available on record.
6. The 1st respondent filed the Execution Petition in E.P.No.48 of 2007 to execute the order passed in IA No.111 of 2004 wherein the petitioner was directed to deposit the monthly rental amount of Rs.600/- every month. According to the petitioner, the order in IA is not executable. The contention of the petitioner is that prayer in EP is contrary to Section 36 of C.P.C the said contention is untenable. A reading of the said provision it is clear that orders also can be executed as it is a decree including the payment under order. The Section reads as follows:
36. Application to orders:
The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).
7. Further, as per order XXI Rule 30 C.P.C. a decree for payment of money as alternative to some other relief may be executed by detention in civil prison of the Judgment Debtor. The Order XXI Rule 30 C.P.C. Reads as follows:
Decree for payment of money:
Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the Civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.
As per Section 36 an order including payment of decree can be executed as a decree.
8. The contention of the petitioner is that there are other defendants and the 1st respondent has filed the E.P. deliberately only against the petitioner is without any merits. The order is passed only against the petitioner directing him to deposit the ordered amount. The petitioner did not pay the amount. In view of the same, the Execution Petition filed by the 1st respondent is maintainable and hence, the impugned order passed in EP for the payment of ordered amount, was rightly allowed by the learned Judge.
9. The learned Judge, considering all the materials available on record dismissed the application by giving cogent and valid reasons. In the circumstances, there is no illegality or irregularity warranting interference by this Court with the order of the learned trial Judge, dated 05.02.2010. Hence, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is also closed.
10. After dismissal of the Civil Revision Petition, the learned counsel appearing for the petitioner represented that the petitioner will deposit an amount of Rs.10,150/- and prays to set aside the order of arrest passed by the learned Judge. Considering the above submission made by the learned counsel appearing for the petitioner, the petitioner is directed to deposit an amount of Rs.10,150/- before the trial Court, within a period of one week from the date of receipt of a copy of this order and on such deposit, the order of arrest shall V.M.VELUMANI, J.
cgi/jv stand set aside. The learned trial Judge is directed to dispose of the suit in O.S.No.40 of 2003 on merits and in accordance with law, as expeditiously as possible, in any event, not later than 3 months from the date of deposit of the amount by the petitioner.
13.06.2017 Index: Yes/No speaking order/non speaking order cgi/jv To The District Munsif Court, Mettupalayam.
C.R.P.(PD)No.3236 of 2010 and C.M.P.No.1 of 2010