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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M. VELUMANI, J.
M. Parimanam @ Parimana Konar - Petitioner
Vs.
T. Egammai - Respondent
C.R.P.(MD) No.122 of 2016 (NPD) and C.M.P(MD) Nos.552 to 554 and 1624 & 1625 of 2016
Decided On : 20-03-2017
DELAY - Specific Performance - Specific Relief Act, Section 28; Civil Procedure Code, Section 148 - The Court dismissed the application to condone the delay in re-presenting the application to set aside the ex-parte order, holding that the petitioner failed to provide sufficient reason to condone the delay. The Court also dismissed all related applications. The Civil Revision Petition was filed against this order. The petitioner contended that the respondent did not offer to pay the balance sale consideration within the time limit fixed by the Court and did not deposit the balance sale consideration into Court, making the E.P. not maintainable. The Court considered the facts of the case and relevant judgments, and held that the E.P. was liable to be struck off, dismissing the E.P. and cancelling the sale deed executed by the Execution Court in favor of the respondent. The Court directed re-delivery of the suit properties to the petitioner and other defendants.
Fact of the Case:
The respondent filed a suit for specific performance of an agreement of sale against the petitioner and others. The Trial Court directed the respondent to pay the balance sale consideration within a specified time, but the respondent failed to do so. The respondent filed an Execution Petition (E.P.) after a delay of 14 years without obtaining an order extending the time to deposit the balance sale consideration. The Execution Court issued a lodgment schedule and permitted the respondent to deposit the balance sale consideration, leading to the sale deed being executed in favor of the respondent.
Finding of the Court:
The Court found that the respondent's delay in depositing the balance sale consideration was not justified and that the E.P. was liable to be struck off. The Court dismissed the E.P., cancelled the sale deed, and directed re-delivery of the suit properties to the petitioner and other defendants.
Issues: The main issue was whether the delay in depositing the balance sale consideration by the respondent was justifiable and whether the E.P. was maintainable.
Ratio Decidendi: The Court held that the respondent's delay in depositing the balance sale consideration without obtaining an order extending the time was not justified. The Court invoked its power under Article 227 of the Constitution of India to prevent abuse of process of law and miscarriage of justice, and dismissed the E.P., cancelled the sale deed, and directed re-delivery of the suit properties to the petitioner and other defendants.
Final Decision: The Court allowed the Civil Revision Petition, dismissed the E.P., cancelled the sale deed, and directed re-delivery of the suit properties to the petitioner and other defendants.
This Civil Revision Petition has been filed against the fair and decreetal order, dated 28.10.2015 in E.A.No.317 of 2015 in E.P.No.20 of 2013 in O.S.No.1 of 1996 by the learned I Additional Subordinate Judge, Thiruchirapalli.
2. The petitioner is the third respondent in E.P.No.20 of 2013. The petitioner filed E.A.No.317 of 2015 in E.P.No.20 of 2013 to condone the delay of 206 days in re-presenting the application to set aside ex-parte order, dated 25.06.2014, passed in E.P.No.20 of 2013. According to the petitioner, the said E.P. was posted to 25.06.2014, for filing counter. The petitioner and other respondents did not file any counter and they were set ex-parte. The petitioner filed application to set aside ex-parte order. The said application was returned for certain compliances. The returned papers were misplaced and was not re-presented in time and therefore, there is a delay in re-presenting the application. The petitioner has good case on merits. Unless the delay is condoned, the petitioner will be put to irreparable loss and hardship.
3. The respondent filed counter and opposed the said application. According to the respondent, the petitioner has made vague averments about the filing of the application and the said averments are false. The respondent has filed E.P.No.20 of 2013 and the petitioner entered appearance through Advocate on 20.06.2013. From that date onwards, the petitioner and other respondents took time for filing counter for more than one year and they did not file any counter. After they were set ex-parte, on 25.06.2014, the Execution Court executed the sale deed on 01.12.2014 and registered sale deed was produced before the Court on 08.04.2015 and the E.P. was closed and therefore, no proceeding is pending and the application filed by the petitioner is not maintainable. Further, the respondent filed E.A.No.171 of 2015 to take delivery of the suit property. The petitioner and others took time for filing counter on six occasions and did not file any counter and therefore, delivery was ordered.
4. Before the learned Judge, the learned counsel for the petitioner contended that after decree of specific performance was passed, the respondent did not offer to pay the balance sale consideration within the time limit fixed by the Court and also did not deposit the balance sale consideration into Court and therefore, the E.P. itself is not maintainable and relied on the following judgments:
(i) 1994 (1) SCC 1 [S.P. Chengalvaraya Naidu (Dead) By LRs. Vs. Jagannath (Dead) by LRs. and others
(ii) 2007 (14) SCC 26 [Chanda (Dead) Through LRs. Vs. Rattni and another
(iii) 1999 (4) SCC 702 [V.S. Palanichamy Chettiar Firm Vs. C. Alagappan and another]
(iv) 2015 (2) CTC 559 : 2015 (4) LW 90 [P.R. Yelumalai Vs. N.M. Ravi]
(v) 2011 (8) MLJ 12 [N. Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd., Rep. by its Branch Manager/Foreman, Tiruvarur]
5. The learned Judge considering the materials on record and the judgments relied on by the learned counsel for the respondent, dismissed the application holding that the petitioner has not given sufficient reason to condone the delay. The petitioner had also filed E.A.No.318 of 2015 to set aside the ex-parte order, dated 25.06.2014; E.A.No.370 of 2015 to recall the delivery warrant, which was issued in E.A.No.171 of 2015; and E.A.No.369 of 2015 to stay of the proceedings in E.A.No.171 of 2015 pending disposal of E.A.Nos.317 and 318 of 2015. The learned Judge dismissed all the above applications.
6. Against the order dated 28.10.2015, passed in E.A.No.317 of 2015 in E.P.No.20 of 2013 in O.S.No.1 of 1996, the present Civil Revision Petition is filed.
7. At the out set, the learned counsel for the petitioner contended that E.P.No.20 of 2013 filed by the respondent is not maintainable and this Court has power to strike off the said E.P. by exercising its power under Article 227 of the Constitution of India. The learned counsel for the petitioner submitted that this Court can suo motu exercise t
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