The civil revision petitioner/petitioner/decree holder has filed this civil revision petition as against the order dated 22.9.2004 in E.A.No.110 of 2003 in E.P.No.70 of 1998 in O.S.No.591 of 1992 passed by the learned Additional Sub Court, Salem in dismissing the application filed by the revision petitioner under Order 21 Rule 35 sub-clause (4) of Civil Procedure Code.
2.To avoid an avoidable delay, the issuance of notice to the respondent is dispensed with by this Court to prevent an aberration of justice.
3.The learned counsel for the revision petitioner submits that the Executing Court, while passing orders in E.A.No.110 of 2003, has technically dismissed the said Execution Application by stating that the list mentioning the concerned items prepared by the Bailiff has not been clearly stated in the application and wrongly observed that both parties are protracting the REP proceedings from 1998 etc. and has dismissed the application and when the list of inventory movables prepared by the Court Amin at the time of delivery are forming part and parcel of the Court record requiring the revision petitioner once again to furnish a list of movables is only a redundant and surplusage one and as a matter of fact, an Executing Court ought to have delivered substantial justice to the parties overriding hyper technicalities and by not doing so has resulted in miscarriage of justice and therefore, prays for allowing the civil revision petition.
4.It is to be noted that Order 21 Rule 35 under the head 'Decree for Immovable Property' sub-clause (4) Madras Amendment speaks of the officer entrusted with the words for delivery shall make an inventory of the articles so found with their probable value, in the presence of respectable persons on the spot, have the same attested by them and leave the movables in the custody of the decree holder after taking a bond from him for keeping the articles in safe custody pending orders of Court for disposal of the same etc.
5.Even though the list prepared by the Amin of the Court in regard to the items of properties which are subject matter of dispute is very much available among the Court records, this Court, without going into the merits of the case, is of the considered view that it is desirable and prudent for the revision petitioner to furnish a list of the articles prepared by the Amin of the Court before an Executing Court and in this regard, the revision petitioner is granted 10 days time here from and thereafter the Executing Court, upon receipt of the said list, shall decide the cause of the parties on merits after providing due opportunities to them within a period of three weeks from the date of receipt of copy of this order in the manner known to law.
6.With these directions, the Civil Revision Petition is disposed of. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
06.11.2009 Index : Yes/No Internet : Yes/No sgl M.VENUGOPAL,J.
Sgl To The Additional Sub Judge, Salem C.R.P.(NPD).No.2551 of 2009 06.11.2009