The fair and decreetal orders, dated 04.04.2008, passed in E.A.No.946 of 2006 in E.P.No.267 of 2005 in O.S.No.271 of 1999, on the file of the Principal Subordinate Court, Tirunelveli, are under challenge in this civil revision petition.
2. It is found that the petitioner has laid the suit against the respondent in O.S.No.271 of 1999 for recovery of money and the said suit ended in favour of the petitioner on 22.02.2002. Putting the above said decree in execution, it is found that the petitioner had levied E.P.No.267 of 2005 against the respondent and in the said execution petition, it is found that the respondent had been set ex parte following the paper publication effected in the proceedings and consequently, the property involved in the execution proceedings was brought for sale and accordingly, it is seen that the petitioner had purchased the property in the Court auction and the sale had been confirmed in its favour and resultantly, the execution petition was closed on 03.04.2006.
3. Seeking to set aside the ex parte order passed in the execution petition, dated 26.09.2005, the respondent has levied an execution application in E.A.No.946 of 2006, under Order XXI Rule 106 and Section 151 of the Code of Civil Procedure. The reasons given by the respondent for setting aside the ex parte order are that the petitioner had earlier filed E.P.No.158 of 2004 against it and the same had been dismissed on 05.10.2004 and thereafter, the present E.P.No.267 of 2005 had been filed by the petitioner and that in the said execution proceedings, an ex parte order had been passed against it on the ground that the notice sent in the execution proceedings to its previous address had been returned and resultantly, a paper publication had been ordered and that the respondent had come to know about the execution proceedings only through its tenant on 04.08.2006 and thereafter, on verification of the records finding that the respondent had been set ex parte and the property had been brought for sale without notice to the respondent, which has remained ex parte due to the change in the address and accordingly, the respondent having no knowledge about the ex parte order in the proceedings and inasmuch as the execution petition had been closed on 03.04.2006 and as the respondent had fair case in the execution proceedings and as the respondent had knowledge about the ex parte order only on 04.08.2006, the application is in time from the date of the knowledge and hence, the ex parte order passed in the execution petition should be set aside and the execution petition should be reopened for fresh hearing.
4. The above said application filed by the respondent has been seriously resisted by the petitioner contending that it is false to state that the respondent had knowledge about the ex parte order only on 04.08.2006 and hence, the application is well within the time as from the date of the knowledge and the same has been stated only for the purpose of the application and the petitioner filed E.P.No.158 of 2004 and in the said execution petition, the respondent had appeared through his Advocate and failed to conduct the proceedings and as a result, sale was ordered and promulgation of sale was made and thereafter, the sale was fixed on 24.09.2004 and as there was no bidder for the sale, the execution petition was dismissed for default and thereafter, the petitioner filed E.P.No.267 of 2005 and the summons were taken through post and Court and the same having been returned, the Court ordered paper publication and consequently, the respondent was set ex parte on 26.09.2005 and thereafter, the sale proceedings were held and the suit property was purchased by the petitioner and after the sale certificate had been issued, the execution petition was closed on 03.04.2006 and thereafter, the respondent had levied an execution application to take delivery and delivery was ordered and the the Court Amin went to the property concerned and submitted his report stating that the building is in locked condition and hence break open petition was filed and it was ordered and thus, it is stated that the respondent had knowledge about the execution proceedings even during December, 2005 when the sale notice was affixed in the suit property and there is no bona fide on the part of the respondent in filing the application and the respondent with a view to avoid the limitation had falsely pleaded that it had knowledge about the ex parte decree only on 04.08.2006 and the respondent has no case at all in the execution proceedings and hence, the application is liable to be dismissed.
5. In support of the respondent's case, P.W.1 was examined and Exs.P1 to P4 were marked and on the side of the petitioner, no oral and documentary evidence has been adduced.
6. The Court below, on the basis of the rival contentions put forth by the respective parties and the materials placed, finding that the respondent had changed its address and the petitioner having not established the service of notice to the respondent through the process server and resultantly, holding that the respondent had no knowledge about the ex parte order passed in the execution proceedings and as it had knowledge about the ex parte order only on 04.08.2006, the application is within time and hence, set aside the ex parte order, dated 26.09.2005, passed in the execution proceedings. Impugning the same, the present civil revision petition has been laid by the petitioner / plaintiff.
7. It is not in dispute that the respondent had suffered a decree in O.S.No.271 of 1999. It is also found that the petitioner, pursuant to the above said decree, levied E.P.No.158 of 2004 against the respondent and in the said execution petition, the respondent had appeared through his Advocate and the execution proceedings came upto the stage of the sale and subsequently, the execution petition has been dismissed for non-prosecution. Be that as it may, it is found that thereafter, the petitioner had filed another E.P.No.267 of 2005 for proceeding against the property concerned. It is found that the notice sent in the above mentioned execution petition to the respondent had been returned and consequently, paper publication was ordered to be effected and on the same being effected, it is found that the respondent had set ex parte in the execution proceedings on 26.09.2005 and thereafter, further proceedings in the execution petition had been taken and consequently, the property concerned was brought for sale and the petitioner had purchased the property in the Court auction and after the sale had been confirmed in favour of the petitioner, it is found that the execution petition had been closed on 03.04.2006. Pursuant to the same, E.A.No.714 of 2006 has been levied by the petitioner seeking for delivery of the property concerned and accordingly, it is stated that the Court Amin had inspected the property and further proceedings had been initiated therein and at that stage of the matter, it is seen that the respondent had preferred an application in E.A.No.946 of 2006 to set aside the ex parte order, dated 26.09.2005, passed in the execution proceedings above mentioned. Now, according to the respondent, inasmuch as it had changed its address, the notice sent in the execution proceedings was not received by it and therefore, according to the respondent, the consequent paper publication effected also had not come to its knowledge and only through its tenant, the respondent came to know about the execution proceedings on 04.08.2006 and thereafter on verification of the records, finding that the ex parte order had come to be passed against it, the respondent had been necessitated to lay the application to set aside the said ex parte order and as the respondent had knowledge about the execution proceedings only on 04.08.2006, as from the date of the knowledge, the application is in time, the respondent had come forward with the application to set aside the ex parte order.
8. The above said application of the respondent was stoutly resisted by the petitioner contending that the respondent had knowledge about the execution proceedings and despite the same, it had not evinced interest to contest the same and the reasoning given by the respondent that on account of the change of address, it had no knowledge about the execution proceedings and also it had no knowledge about the paper publication are all made only for the purpose of this case and the case of the respondent that it had changed its address is not true and not substantiated with acceptable material and following the ex parte order passed against the respondent, further proceedings had been initiated in the execution petition and the property concerned was brought for sale and the sale was confirmed in favour of the petitioner and therefore, it is stated that only with a view to delay the execution proceedings one way or the other, without paying the decreetal amount, the present application has been levied and it is false to state that the respondent had knowledge about the execution proceedings only on 04.08.2006, through its tenant and the same had been averred only to save the point of limitation and hence, the application is liable to be dismissed.
9. It is not in dispute that after the respondent had been set ex parte in the execution proceedings on 26.09.2005, further proceedings had been taken in the execution proceedings and consequently, the property had been brought for sale and that the petitioner had purchased the property and the sale had been confirmed in its favour and resultantly, the execution petition was closed on 03.04.2006. It is also not in dispute that pursuant to the same, the petitioner had taken steps to obtain the delivery of the property and that the Amin had inspected the property concerned for effecting the delivery.
10. Now, it is the case of the respondent that only on 04.08.2006, it had come to know about the execution proceedings through its tenant. The said reason adduced by the respondent is seriously contested by the petitioner. According to the petitioner, the respondent had knowledge about the previous execution proceedings in E.P.No.158 of 2004 and also the present execution proceedings in E.P.No.267 of 2005 and the respondent had been watching the proceedings and had come forward with the application at the fag end of the matter with a view to defeat the petitioner from getting delivery of the property without paying the decreetal amount as ordered and the case of the respondent that it had knowledge about the execution proceedings only on 04.08.2006 is seriously contested by the petitioner stating that the above said reason is a false one made for the purpose of this case with a view to save the point of limitation. In such view of the matter, it is found that the respondent having come forward with an application to set aside the ex parte order, dated 26.09.2005, on the plea of certain facts to save the point of limitation and when the said facts are being seriously repudiated by the petitioner, it is for the respondent to establish the same prima facie to show the genuineness of its case. Now, according to the respondent, on account of the change of its address, it has no knowledge about the execution proceedings and the consequent paper publication effected in the execution proceedings. When the plea of the respondent that it had changed its address itself is in dispute and not accepted by the petitioner, it is found that prima facie to the satisfaction of the Court, substantial material worth acceptance should have been placed by the respondent to establish that it has changed its address as claimed. The respondent is a Company. In such view of the matter, as rightly argued by the learned counsel for the petitioner, in the event of change of address by the respondent officially, it would have sent due notice of the same to the Registrar of Companies as per law. The said position is also not controverted by the respondent. However, with reference to the said claim, there is no material placed by the respondent to the satisfaction of the Court stating that the change of address has been duly intimated to the Registrar of Companies as per law. The best document in support of the claim of the respondent is the communication sent by the respondent to the Registrar of Companies about the change of address. But, for the reasons best known to the respondent, it had not placed the said material for the consideration of the Court. On the other hand, it is found that the respondent had only chosen to place certain Telephone bills for proving its case of change of address. However, when the same would not conclusively establish the plea of change of address put forth by the respondent, it is found that the Court below had wrongly placed reliance upon the same for holding that the respondent has changed its address. The respondent being a Company cannot plead that it had changed its address as a matter of course without any basis. When the same is stoutly contested by the other side, as rightly argued by the learned counsel for the petitioner, it is incumbent on the part of the respondent to establish the said version with acceptable proof. When the same is not done, it is found that as rightly argued by the learned counsel for the petitioner, the notice sent in the execution proceedings to the address of the respondent should be construed only as a notice sent to the proper address of the respondent and in such view of the matter, it is found that the respondent had knowledge about the execution proceedings as such. It is further found that inasmuch as the notice had been returned, the Court deemed it fit to order paper publication and accordingly, paper publication has also been effected in the matter and only thereafter, the respondent had been set ex parte on 26.09.2005. Accordingly, it is found and it could also be inferred that the paper publication is also known to the respondent and despite the same, it had not chosen to contest the execution proceedings in the manner known to law.
11. However, it is argued by the learned counsel for the respondent that it had no knowledge about the execution proceedings and came to know about the execution proceedings only on 04.08.2006 through its tenant. When the said claim of the respondent is also stoutly controverted by the petitioner and a suggestion was also put to the respondent's witness examined as P.W.1 in the matter, at least, the respondent should have been alert and endeavoured to establish its case that it had knowledge about the execution proceedings only on 04.08.2006 as claimed by it. However, with reference to the same, there is no material worth acceptance placed by the respondent. As per the plea of the respondent, it had come to know about the execution proceedings only on 04.08.2006 through its tenant. However, the name of the tenant has been mentioned neither in the execution application nor in the evidence. Furthermore, the said tenant, who had passed on the information about the execution proceedings to the respondent had not been examined and no reason has been given for the same. When the petitioner has stoutly contested the claim of the respondent that it had knowledge about the execution proceedings only on 04.08.2006 through its tenant at least to establish its case prima facie, the respondent should have endeavoured to examine its tenant so as to throw more light on the said issue. However, the respondent had failed to establish the same through acceptable and reliable evidence.
12. The respondent now seeks to avoid the plea of limitation only on the footing that it had knowledge about the execution proceedings only on 04.08.2006. However, when the said plea is repudiated by the petitioner and when the said plea, despite the resistance put forth by the petitioner, had not been duly established by the respondent as per law, the case of the respondent that it had knowledge about the execution proceedings only on 04.08.2006 as such cannot be straightaway countenanced. As above seen, after the respondent had been set ex parte on 26.09.2005, further proceedings had been taken in the execution proceedings and by way of the same, the property in question had been brought for sale and the sale had been confirmed in favour of the petitioner and thereafter, the execution petition had been closed on 03.04.2006. Therefore, for one year after the ex parte order has been passed against the respondent, several proceedings had been taken place in the execution proceedings, which resulted in the sale being confirmed in favour of the petitioner. In such view of the matter, the plea projected by the respondent that it has no knowledge about the execution proceedings prior to 04.08.2006 as such cannot be countenanced.
13. In the light of the above position, it is seen that the respondent had knowledge about the execution proceedings as claimed by the petitioner and accordingly had been watching the proceedings from day one and finally, after the sale had been confirmed in favour of the petitioner, very coolly had come forward with an application as if it had no knowledge about the execution proceedings till 04.08.2006. When the very basis for the same has been stoutly resisted by the petitioner and when the said plea has not been established by the respondent, it is found that the Court below has erred in coming to the conclusion that on account of the change of address, the respondent is not aware of the execution proceedings. Equally, the Court below has also erred in holding that the respondent had come to know about the execution proceedings only on 04.08.2006 when the same is not substantiated with acceptable materials. It is, thus, found that the respondent had knowledge about the execution proceedings well in advance and in such view of the matter, the respondent cannot maintain the application to set aside the ex parte order passed in the execution proceedings without necessary application to condone the delay in filing the said application. In such view of the matter, it is found that as rightly argued by the learned counsel for the petitioner, the application laid by the respondent to set aside the ex parte order in the execution proceedings without delay condonation application is not maintainable.
14. The facts being as above, it is found that the various authorities relied upon by the learned counsel for the respondent reported in AIR 1977 Madras 358 [G.Subramania Mudaliar and others vs. The Ideal Finance Corporation], (1993) 2 MLJ 124 [Abdul Salam Rowther vs. State Bank of India] and (2010) 6 SCC 786 [Improvement Trust, Ludhiana vs. Ujagar Singh and others], as rightly argued by the learned counsel for the petitioner, are found to be not applicable to the case at hand.
15. In the light of the above discussions, the impugned order of the Court below cannot be sustained in the eyes of law and it is liable to be set aside.
16. Accordingly, the fair and decreetal orders, dated 04.04.2008, passed in E.A.No.946 of 2006 in E.P.No.267 of 2005 in O.S.No.271 of 1999, on the file of the Principal Subordinate Court, Tirunelveli, are set aside and resultantly, E.A.No.946 of 2006 is dismissed with costs. At the end, the civil revision petition is allowed with costs. Consequently, connected miscellaneous petition is closed.
To:
The Principal Subordinate Judge, Tirunelveli.
.