The revision petitioner/decree holder has filed this present civil revision petition as against the order dated 23.2.2007 in E.P.No.25 of 2004 in O.S.No. 17 of 2003 passed by the learned Subordinate Judge, Bhavani in closing the execution petition for the present granting liberty to the revision petitioner to file fresh execution petition after the disposal of pending appeal before the this Court.
2. The trial Court, while closing the execution petition in E.P.No.25 of 2004 for the present etc has observed that 'during enquiry, the respondent/Judgment Debtor has represented that the execution petition had been stayed by the order passed in C.M.P.No.14138 of 2003 in S.A.No.1546 of 2003 and therefore both parties were directed to furnish the particulars of the interim stay whether the interim stay is in force or had been vacated and that both the parties had not furnished any order copy of the High Court, in spite of repeated adjournments, directing both parties to furnish the appropriate orders and in such circumstances, this Court is unable to execute the decree as it will cause miscarriage of justice and also amount to judicial indiscipline for not respecting the orders passed by the higher forum in the judicial hierarchy and to avoid such complications and difficulties, it is better that this petition is closed for the present, with direction to the decree holder to file a fresh execution petition for the same relief as the decree holder is in no way affected and he has enough time as per the limitation act to prosecute the case, no purpose will be served by retaining the execution petition on file and offering the explanation to the High Court for pendency and therefore, closed the petition for the present and it is also directed the revision petitioner to file fresh execution petition, after the disposal of the second appeal before the High Court and as closed the execution petition for the present.
3. According to the learned counsel for the revision petitioner/plaintiff/decree holder, the order of the trial Court suffers from material irregularities and if allowed to stand would cause great hardship and irreversible loss to the petitioner and more over the trial Court should have proceeded with the execution proceedings inasmuch as there is no prohibitory order against the Court continuing with the proceedings and indeed when the respondent/Judgment debtor has informed the trial Court that the decree under execution has been stayed, then the burden is upon such person to produce the order of stay and the petitioner cannot prove in the negative form and in short the reasons ascribed by the trial Court in closing the execution petition are untenable in law and prays for allowing the revision petition in furtherance of substantial cause of justice.
4. This Court has paid anxious consideration to the arguments advanced on both sides and noticed the same.
5. The revision petitioner/plaintiff is the decree holder in O.S.No.17 of 2003 on the file of Fast Track Court No.IV, Bhavani. As against the Judgment and decree dated 28.11.2003 made in O.S.No.17 of 2003 by the Fast Track Judge, NO.IV Bhavani, no further proceedings have been taken by the respondent/defendant/Judgment Debtor in the manner known to law. The revision petitioner/plaintiff has filed E.P.No.25 of 2004 praying for execution of sale deed and for delivery of possession of immovable properties of the respondent/Judgment Debtor.
6. Before the trial Court, the respondent/Judgment Debtor has filed a detailed counter inter alia stating that 'as per paragraph 4 of the counter, the learned Fast Track Judge, NO.IV Bhavani had directed the Judgment Debtor to repay the advance amount of Rs.1,00,000/- to the decree holder in instalments were futile. The Judgment Debtor and his brothers and sisters had preferred appeal against the decree and Judgment passed in O.S.No.379 of 1999 and that the second appeal is pending before the High Court, Madras in S.A.No.1546 of 2003 and an order of interim stay had been granted in C.M.P.No.14139 of 2003 in S.A.No.1546 of 2003 and that the stay is in force , as per the order passed in C.M.P.No.14138/2003, the decree passed in O.S.No.17 of 2003 dated 28.11.2003 of learned Fast Track Judge No.IV, Bhavani cannot be executed and that the Judgment Debtor is ready and willing to repay the advance amount to the petitioner/decree holder and that only to cause harassment to the Judgment debtor, this petition has been filed. Hence it has to be dismissed as not maintainable'.
7.The learned counsel for the respondent/Judgment Debtor brings it to the notice of this Court that the trial Court in paragraph 2 of its Judgment in O.S.No.17 of 2003 dated 28.11.2003 has inter alia observed that ........... 'subsequently one Ponnusamy of Lakkampatti Village also issued a notice, dated 27.9.2002 to the plaintiff and defendant alleging that the said Ponnusamy has got a decree in O.S.No.379 of 1999 on the file of Sub Court, Mettur against the defendant and initiated proceedings against the suit properties in view of recovery of decree amount. The plaintiff submits that he undertakes to pay off the decree amount in connection with O.S.No.379 of 1999 referred to above and the loan amount due to the Bhavani Cooperative Land Development, Bhavani, payable by the defendant from and out of the remaining sale consideration amount of Rs.2,00,000/-(Rupees Two Lakhs Only) and therefore, there will be no impediments for the plaintiff to seek the relief of specific performance with regard to the suit property etc and also the trial Court has come to the conclusion that the plaintiff is entitled to the relief of a decree for specific performance of sale to be executed by the defendant within a period of six months from the date of the decree upon receipt of reminder of sale consideration up on due discharge of existing loan amount in respect of decree in O.S.No.379 of 1999 and also the amount due on the loan amount of D.W.1 with accrued interest and thus to execute sale deed by D.W.1 in favour of P.W.1 or his order at the cost of plaintiff failing which the defendant is directed to repay the earnest amount of Rs.1,00,000/- received by her, with accrued interest at the rate of 12% per annum from the date of agreement till the date of realisation with costs and a charge is ordered to be created over the suit properties for due repayment of advance amount with interest and costs and the defendant is directed to pay the said sum within six months from the date of decree failing which the charged properties are ordered to be sold for realisation of the same'.
8.. It is significant to make a mention that in O.S.No.379 of 1999 on the file of Sub Court, Mettur(Sub Court, Sankari in O.S.No.339/91) one Ponnusamy has figured as plaintiff and has instituted a suit for recovery of the suit amount of Rs.50,780/- together with interest on a principal amount of Rs.40,000/- and with costs. As against the first defendant Gurusamy Gounder(deceased) and five others in which a decree has been passed as prayed for in the suit etc., Indeed, the 4th defendant Poongodi in O.S.No.379 of 1991 on the file of the Sub Court, Mettur is respondent in C.R.P.(NPD) NO.1866 of 2008 and she has also figured as defendant/Judgment Debtor in O.S.No.17 of 2003 on the file of Sub Court,(FTC IV) Bhavani and the decree holder /plaintiff in O.S.No.17 of 2003 is one A.V.Maraswamy, who is admittedly revision petitioner in C.R.P(NPD) No.1866 of 2008 .
9. It is to be borne in mind as against the Judgment and decree passed in O.S.No.379 of 1999 on the file of Sub Court, Mettur, A.S.No.79 of 2001 has been preferred by defendants 2 to 5 as appellants on the file of learned Second Additional District Judge, Salem and resultantly, the appeal has been dismissed with costs confirming the Judgment and Decree of the trial Court passed in O.S.No.379 of 1999 on the file of Sub Court, Mettur. As against the Judgment and decree passed in A.S.No.79 of 2001 dated 26.3.2002 by the Second Additional District Judge, Salem, S.A.No. 1546 of 2003 has been preferred before this Court by the appellants/D2 to D5 and the same is pending and in C.M.P.No.14138 of 2003, this Court on 23.10.2003 has granted an order of interim stay and later on 29.12.2003 passed an order of making the stay absolute on condition that the appellants depositing 50% of the amount decreed with costs in four weeks to the credit of O.S.No.379 of 1999 in the Sub Court, Mettur, failing which the stay granted shall stand vacated automatically and on such deposit, the respondent/plaintiff is at liberty to withdraw the same out of Court.
10. At this juncture, it is not known as to whether the respondent/plaintiff has withdrawn 50% of the decree amount from the trial Court in case the same has been deposited by the appellants.
11. Be that as it may, in view of the fact that the trial Court in O.S.No.17 of 2003 has come to a irresistible conclusion that the plaintiff therein A.V.Marasamy(revision petitioner herein) is entitled to the relief of decree for specific performance of sale to be executed by the defendants within a period of six months etc and because of the fact that this Court has passed further orders on 29.12.2003 in C.M.P.No.14138 of 2003 in S.A.No.1546 of 2003 to the effect that the interim stay granted on 23.10.2003 will be made absolute on condition, all the appellants viz..Kannayal @ Pavayammal and three others depositing 50 % of the decree amount together with costs in four weeks to the credit of O.S.No.379 of 1999 in Sub Court, Mettur etc, this Court opines inter alia that the decree passed in O.S.No.17 of 2003 dated 28.11.2003 by the learned Subordinate Judge, (FTC No.IV) Bhavani is an unexecutable one and ultimately, the conclusion arrived at by the Executing Court in E.P.No.25 of 2004 in dismissing the petition as not maintainable is a valid and proper one in the eye of law and there is no patent illegality or material irregularity in the order passed by the trial Court and resultantly the civil revision petition fails and the same is liable to be dismissed.
12. In the result, the civil revision petition is dismissed. The order passed by the trial Court in E.P.No.25 of 2004 in O.S.No.17 of 2003 on the M.VENUGOPAL,J sg file of Sub Court,(FTC IV) Bhavani are affirmed by this Court for the reasons assigned in this revision. Considering the facts and circumstances of this case, the parties are directed to bear their own costs in this revision.
23-7-2009 Index:Yes Internet:Yes sg To The Sub Court, Bhavani order in CRP(NPD) No.1866/2008 Pre-delivery order in C.R.P(NPD) No.1866 of 2008 To Mr.Justice M.VENUGOPAL Most respectfully submitted