This Civil Revision Petition is directed against the fair and decreetal order dated 6.7.2012 made in E.P.No.24 of 2009 in O.S.No.128 of 2001 by the learned Subordinate Judge, Bhavani.
2. The facts in brief are as under: The first respondent herein filed suit in O.S.No.128 of 2011 on the file of the learned I Additional District Court/Fast Track Court No.4, Bhavani, seeking recovery of money on the basis of pronote issued in favour of him, against the petitioner and respondents 2 and 3 herein. The said suit was decreed on 8.1.2010 and on the basis of decree passed in the above said suit, the first respondent filed E.P.No.24 of 2009 and the same was allowed on 6.7.2012. Assailing the said order dated 6.7.2012, the present civil revision is filed.
3. The learned counsel appearing on behalf of the petitioner contended that the petitioner alone borrowed money from the first respondent and his 1/4th share alone will fetch more than the decree amount and, therefore, the sale of the entire family property will cause irreparable damage and loss to the petitioner. He added that even before the Execution Court the petitioner had requested that 1/4th share of the petitioner alone will fetch the decree amount, but the trial Court had erroneously allowed the execution petition without applying its mind.
4. The learned counsel further submitted that the finding of the trial Court while allowing the petition of the first respondent to the effect that after selling the entire extent of property, the remaining amount if any will be refunded to the petitioner herein cannot be countenanced as the same would cause grave injustice to the petitioner and respondents 2 and 3, who are owning no other property.
5. The learned counsel appearing on behalf of the first respondent reiterated the reasons that weighed with the Court below and passing the impugned order and prayed for dismissal of this civil revision petition.
6. I heard Mr.Ayyadurai, learned counsel for the petitioner and Mr.V.Anandhamoorthy, learned counsel for the 1st respondent and perused the documents available on record.
7. At the outset, it is apposite to refer to the relevant portion of the order dated 4.9.2012 passed in this civil revision petition, which reads as under:
5. According to the learned counsel appearing for the petitioner, though the amount due and payable according to the respondents/decree holders as per E.P. is 3,28,000/-, the entire property including the house worth about Rs.1 crore, being brought to for sale by way of proclamation. Learned counsel submitted that he specifically stated in the counter that the petitioner has 13 acres of land the value would be approximately Rs.15 lakhs per acre, apart from the land, residential house of the petitioner is also brought for sale.
6. It is settled proposition of law that a decree cannot be challenged before the Executing Court. Considering the averments made in the accompanying affidavit and also the arguments advanced by the learned counsel appearing for the petitioner, at the request in order to settle dues payable as per the decree, I find it just and reasonable to grant interim stay on reasonable condition. Accordingly, interim stay is granted on condition that the petitioner/judgment debtor shall pay Rs.50,000/- directly to the respondents or deposit the same within a period of four weeks from the date of this order, to the credit of the suit in O.S.No.128 of 2011 on the file of the Sub Court, Bhavani, without prejudice to the claim of both the parties. If the conditional order is not complied with, the interim stay granted shall stand vacated automatically without any further reference to this Court and the respondent would be at liberty to proceed with E.P. According to law.
8. In due compliance of the above said order, the petitioner had complied with the conditional order, referred supra, and deposited the sum of Rs.50,000/- on 18.9.2012. The petitioner/judgment debtor had filed a memo dated 15.12.2016, which reads as under:
It is submitted that the above C.R.P. is preferred against the Fair & Decretal order made in E.P.24/2009 on the ground of Excessive execution. The Petitioner/Judgment Debtor has already deposited a sum of Rs.50,000/- in the Sub Court Bhavani on 18.9.2012 and is willing to repay the remaining amount at the rate of Rs.40,000/- per month till realization of the suit claim in O.S.No.128 of 2001 on the file of the Sub-ordinate Court at Bhavani as per decree dated 28.3.2007.
9. The learned counsel appearing on behalf of the first respondent had not placed any document rebutting the claim of the petitioner that the property ordered to be sold is worth over Rs.One Crore, when the amount payable to the first respondent is only Rs.3,28,000/-. That apart, the first respondent had not taken any steps to vacate the interim order till date and had not filed any counter affidavit.
10. Considering the fact that for the due of Rs.3,28,000/-, the property worth over Rs.One Crore is being proposed to be sold, which is not disputed by the first respondent, in the interest of justice, this Court is inclined to set aside the order passed by the Court below.
11. Resultantly, the civil revision petition is allowed by setting aside the order passed in E.P.No.24 of 2009 in O.S.No.128 of 2001, dated 06.07.2012, on the file of the Subordinate Judge, Bhavani. The petitioner/judgment debtor is directed to pay the balance decree amount at the rate of Rs.40,000/- per month till the completion of the E.P. claim. If the petitioner/judgment debtor commits any default in payment of any one instalment, the first respondent/decree holder is permitted to proceed with the case against the petitioner. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2017 Note:Issue order copy on 25.09.2018 vs Index : Yes/No To The Subordinate Judge Bhavani.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(NPD) No.2996 of 2012 and M.P.No.1 of 2012 21.02.2017