Back
2014 Supreme(Mad) 3347
High Court of Judicature at Madras
S. VIMALA, J.
Thamayanthi
Versus
Nachimuthu Gounder
Civil Revision Petition (NPD) No. 3169 of 2014
Decided on: 19-09-2014
For the Petitioner:M. Guruprasad, Advocate.
The central legal point established in the judgment is that the production of a Certified Copy of Decree is not a condition precedent at the time of filing of the Execution Petition, and the Copy of the Suit Register is sufficient for the purpose of taking the Execution Petition on file.
Headnote:
Execution Petition - Transfer of Decree - Order 21 Rule 11(2) of the Code of Civil Procedure - O.S.No.8 of 1975 - 4581 of 2013 - The court discussed the provisions of Order 21 Rule 11(2) of the Code of Civil Procedure and emphasized that the production of a Certified Copy of Decree is not a condition precedent at the time of filing of the Execution Petition. It held that it is enough when the Copy of the Suit Register is filed for the purpose of taking the Execution Petition on file. The court set aside the order passed in the Execution Petition and directed the Executing Court to take the petition on file without insisting upon the copy of the decree and by accepting the copy of the Suit Register.
Fact of the Case:
The plaintiff filed a suit seeking maintenance in O.S.No.8 of 1975, which was decreed in 1995. Several Execution Petitions were subsequently filed for the transmission of the decree, sale of charged properties, and delivery of possession. The plaintiff filed an Execution Petition under Order 21 Rule 11(2) of the Code of Civil Procedure seeking transfer of the decree from one court to another, which was dismissed by the Executing Court.
Finding of the Court:
The court found that the Executing Court should have been lenient enough to proceed with the Execution Petition accepting the copy of the Suit Register, especially considering the decree was pending for execution since 1995 and was for maintenance. It set aside the order passed in the Execution Petition and directed the Executing Court to take the petition on file without insisting upon the copy of the decree and by accepting the copy of the Suit Register.
Issues: The main issue was whether the Executing Court erred in dismissing the Execution Petition seeking transfer of the decree from one court to another under Order 21 Rule 11(2) of the Code of Civil Procedure.
Ratio Decidendi: The court held that the production of a Certified Copy of Decree is not a condition precedent at the time of filing of the Execution Petition and emphasized that it is enough when the Copy of the Suit Register is filed for the purpose of taking the Execution Petition on file.
Final Decision: The court set aside the order passed in the Execution Petition and directed the Executing Court to take the petition on file without insisting upon the copy of the decree and by accepting the copy of the Suit Register.
1. This civil revision petition has been filed by the plaintiff against the fair and final order dated 29.4.2014 passed in unnumbered E.P.C.F.R.No.4581 of 2013 in O.S.No.8 of 1975 on the file of the District Munsif, Dharapuram.
2. The plaintiff/decree holder, who is the revision petitioner herein filed a suit in O.S.No.8 of 1975 seeking a relief of maintenance and the same was decreed on 2.5.1995. Thereafter, she filed several Execution Petitions. The details of the same are furnished below:
“EA. 999.80 - To transmit the decree to District Munsif Court
16.12.80 - Karur DA Rs.20,355.96 - 1180-13
EA1.324/13 - To transmit the Decree to District Munsif Court
9.12.13 - Karur – Rs.25,876.12 - 1181-13
EP105/84 - For sale of charged properties
25.3.84 DA - 29760-00
costs - 1544-50
EP 25-97 - 51200/- Notice For sale of charged
15.7.1996 - 27.2.1997 properties - 1613-00
& 20.2.1997
EA 81-98 - For issue charges for Rs.19855/-
13.2.1998 in favour of Thiru S.Balasubramaniam.Ado
EA 97-98 - For receive of possession as per sale
EP 25-97 - Certificate
OS 8/95
23.2.1998
EP 40/98 - 37,900 For sale of charged property 1744.00 7.4.1998 - 21.4.1998
5.1.1999 Property sale on 5.1.1999 beat at Rs.20,100/-
sale conducted in favour of one Thamayanthi W/o Nachimuthugounder and poundage at
Rs.633/-
deposited and sale certificate charges deposited for Rs.140/- in time.
16.3.1999 No sale seturicer petition filed. Sale is confirmed.
Issue sale certificate. Petition is closed.
EA 205-1999 For delivery of possession as DA -
17.7.1999 Mentioned in the petition Cost –
Rupees as per sale certificate
30.8.2000 Possession delivered. Delivery recorded
EP is terminated
EA 266/2001 To transmit the Decree to District Munsif
Karur, DAB
23.7. & 2.8.2001 28459.00 cost 121.00
7.8.2001 Transmit and notice in Executing Court.
12. Result of execution:
The amount paid into Court Person arrested Whether Judgment debtor committed to jail If not why not If committed to jail period of stay in it Minute of other return other then arrest and payment The amount or relief still due and why execution petition is struck off the file If petition infructuous why and what extent Appeal if any against the order and execution and if so, the result.
1 2 3 4 5 6 7
17.12.1980 - Transmit subject to notice is Executing Court
9.12.1983 - Transmit Notice at Executing Court
18.7.1988 - P.S. For Rs.300/- recorded sale Batta not paid
EP dismissed
12.12.1997 - Lot No.2 sold for Rs.20,500/- to one Ganesan Entire sale amount less poundage collected from the auction purchases
10.2.1998 - Sale confirmed. Issue sale certificate.
Petition is closed.
17.2.1998 - Issue a cheque for Rs.19,855/- in favour of Thiru S.Balasubramanian, Advocate for petitioner.
13.2.1998 - PS memo filed and accorded. 17.2.1998 C.No.033619 dated 18.2.98 for Rs.19.855/- in favour of Thiru.S.Balasubramanian, Advocate for petitioner.
15.6.1998 - Possession delivered on 26.5.1998.
Delivery & recorded Hence files petition is closed.”
“TAMIL”
3. Execution Petition has been filed under Order 21 Rule 11(2) of the Code of Civil Procedure seeking transfer of the decree from the District Munsif Court, Dharapuram to the District Munsif Court, Karur and the same has been dismissed with the following endorsement:
“Since the decree is not sent back to this Court, the same cannot be transmitted as prayed for by the petitioner. Hence, petition rejected.”
4. The above said order is under challenge in the revision petition.
5. It is the contention of the learned counsel for the revision petitioner that the mistake of the Court cannot cause any prejudice to the decree holder and on an earlier occasion when an Execution Petition was filed, the decree also has been filed along with the said Execution Petition and the same would have been misplaced/missed during transit. Therefore, the Executing Court ought not to have dismissed the Execution Petition filed under Order 21 Rule 11 (2) of the Code of Civil Procedure, especially when the application is fi
