The petitioner/respondent/defendant has filed the Civil Revision Petition as against the order dated 16.06.2008 in EA.No.86/2008 in EPR.No.159/2005 in OS.No.99/2001 passed by the learned Additional Subordinate Judge, Udumalpet.
2. The executing court while passing orders in EA.No.86/2008 dated 16.06.2008 has interalia opined that "absolutely no merits in the petition .... and moreover he has paid the decree amount in part to adjourn the same and resultantly dismissed the application without costs."
3. The learned counsel appearing for the Revision petitioner/defendant/judgment debtor before this court urges that the order of the trial court passed in EA.86/2008 dated 16.06.2008 is contrary to law and suffers from serious infirmities and material irregularities and that the executing court has not taken note of the fact that the Revision Petitioner has filed IA.197/1998 to condone the delay in setting aside the exparte decree order dated 06.07.2001 and the same since been adjourned, for filing counter of the respondent/decree holder and moreover the Revision Petitioner has been suffering from Jaundice and has been to Kerala to take treatment because of which the exparte decree has been passed against him, and also that the Revision Petitioner has paid part amount of the decree to adjourn the sale and in short the order of the trial court looking it from any angle is not sustainable in the eye of law and therefore prays for allowing the Civil Revision Petition to promote substantial cause of justice.
4. Per contra, the learned counsel appearing for the respondent/decree holder submits that the order of the trial court in dismissing the execution application is a valid one and the executing court has taken into account of the facts and circumstances of the case and has passed a reasoned order on merits and the same need not be interference with by this court sitting in revision.
5. It is brought to the notice on the side of the respondent/decree holder that this court on 16.10.2008 has passed the following order :
"One Mr.Sivaprakasam, son of the revision petitioner appeared in person. He submitted that he is prepared to pay the decree amount in three installments and that within one week, he will pay the first installment. In view of the said statement made by Mr.Sivaprakasam, son of Pappammal, there will be an order of interim stay of further proceedings in EP.No.159/2005 in OS.No.99/2001 on the file of the Sub Court, Udumalpet, subject to the condition that the petitioner pays 1/3rd of the decree amount on or before 24.01.2008 and pays another 1/3rd of the decree amount on or before 21.11.2008 and the balance 1/3rd of the decree amount on or before 19.12.2008. It is made clear that if the petitioner commits default in payment of one of these installments, further proceedings in the EP.No.159/2005 will progress."
6. Continuing further, on the side of the respondent/decree holder, a memo dated 30.07.2009 has been filed before this court wherein it is subsequently mentioned that the "Revision Petitioner" has paid only the first installment and committed default in regard to the payment of 2nd and 3rd installments and therefore the conditional order of this court has not been filed complied with by the Revision Petitioner and this fact is also not in dispute.
7. Admittedly, an Exparte Decree in OS.No.99/2001 on the file of the learned Additional Subordinate Judge, Udumalpet has been passed on 06.07.2001. A perusal of the petition in EP.No.159/2005 filed by the respondent/decree holder in clear terms do indicate that the claim in execution petition is to the extent of Rs.58,220/- alongwith costs of Rs.5,460.25/- The Execution Petition has been projected by the Revision petitioner/decree holder in bringing the property of the Revision petitioner/defendant to sale. Suffice it for this court to point out that the order of the executing court EA.No.86/2008 dated 16.06.2008 does not suffer from any serious infirmity or patent illegality and apart from that the Revision petitioner has also not complied with the conditional order passed by this court on 16.10.2008 and moreover he has only paid the first installment and has committed default in paying the 2nd and 3rd installments and viewed in that perspective the Civil Revision Petition is devoid of merits and the same is dismissed in the interest of justice.
8. In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the executing court EA.No.86/2008 is confirmed by this court for the reasons assigned in this revision. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, the connected Miscellaneous petition is closed.
tsh To The learned Additional Subordinate Judge, Udumalpet