This revision has been filed by the petitioners against the order passed by the Execution Court in REP.No.96 of 2008 in O.S.No.328 of 2005 under Order 21 Rule 34 of CPC directing the petitioners herein, who were the respondents in the EP, to execute the sale deed by 25.09.2008.
2.The contention raised by the petitioners would be that they have already filed a petition to set aside the exparte decree and also an application for condonation of delay of 436 days in filing a petition to set aside the exparte decree before the trial Court and that during the pendency of those petitions, the Execution Court has passed the impugned order. Therefore, the said order passed by the execution Court was a nullity and not in accordance with the principle of law. The learned counsel for the petitioners would, therefore, submit that the order passed by the Execution Court on 29.08.2008 directing the petitioners herein to execute the sale deed in consonance with the exparte decree passed by the trial Court in favour of the respondent/plaintiff and this revision petitioner may also be allowed.
3.The learned counsel for the respondent would submit in his argument that the order passed by the Execution Court on 29.8.2008 directing the petitioners to execute the sale deed in favour of the respondent is a valid order. He would further submit that there was no stay order passed by the trial Court nor by the execution Court towards the proceedings of the execution in pursuance of the decree and the said decree passed by the trial Court in O.S.No.328 of 2005 is valid until it is set aside by the orders of the Court. He would submit that there is no necessity for this Court to interfere with the order passed by the lower Court and therefore, the revision petition may be dismissed.
4.Considering the submissions made by both sides, I could see that the impugned order of the Execution Court dated 29.8.2008 made in REP.No.96 of 2008 in O.S.No.328 of 2005 was passed after scrutinizing the contentions made in the counter and after finding that there was no valid reason for not to proceed with the case further. According to the submissions made by the learned counsel for the revision petitioners, the Execution Court ought not to have passed the said order directing the petitioners to execute the sale deed in pursuance of the exparte decree as the petitions for setting aside the exparte decree and for condonation of delay in filing the petition to set aside the exparte decree were pending at that time. Indisputably the above said petitions were pending during the time when the Execution Court passed the impugned order. It is the discretion of the trial Judge either to condone the delay caused in filing the petition to set aside the exparte decree or to dismissing the petition. If the said petitions are allowed in favour of the petitioners, then only the order passed by the Execution Court could be considered as invalid. In such an event, the petitioners will not be affected in any manner. Admittedly there is no order of stay passed either by the trial Court or by the Execution Court. In such circumstances, the order passed by the Execution Court on 29.08.2008 directing the petitioners to execute the sale deed in favour of the respondent/plaintiff, which is in pursuance of the decree passed by the trial Court is lawful and it cannot be set aside. Therefore, the revision petition is not sustainable and accordingly, the same is dismissed. Connected Miscellaneous Petition is also dismissed. No costs.
27.07.2009 Index :Yes/No Web :Yes/No V.PERIYA KARUPPIAH, J.
To, The District Munsif, Tiruvallur.
ssv CRP.NPD.No.3176 of 2008 and M.P.No.1 of 2008 27.07.2009