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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C. SARAVANAN, J.
SEEMADEVI - Appellant
Versus
DEVASENAPATHY - Respondent
Civil Revision Petition (NPD) No. 2548, 2549 of 2018; Civil Miscellaneous Petition No. 15445 of 2018
Decided on : 08-10-2018
Execution Proceedings - Property Auction - Decree Amount - Civil Revision Petitions
Fact of the Case:
The wife and daughter of the judgment debtor filed Civil Revision Petitions to set aside an order that set them ex parte and to stay the execution proceedings, as they were being pursued by the decree holder.
Finding of the Court:
The court found that the petitioners, as family members of the judgment debtor, were not third parties to the proceedings and had the right to deposit the entire decreed amount to stay the sale of the property through court auction. The decree holder was entitled to receive the amounts deposited, and the execution proceedings were directed to be terminated as the claim of the decree holder stood satisfied.
Issues: The issues involved the petitioners' right to resist the execution and proclamation of sale, their status as third parties, and the entitlement of the decree holder to receive the decreed amount.
Ratio Decidendi: The court held that the petitioners, as family members of the judgment debtor, were not third parties and had the right to deposit the entire decreed amount to stay the sale of the property through court auction. The decree holder was entitled to receive the amounts deposited, and the execution proceedings were directed to be terminated as the claim of the decree holder stood satisfied.
Final Decision: The impugned order was set aside, and the 2nd respondent, the decree holder, was entitled to receive the amounts deposited. The execution proceedings were directed to be terminated as the claim of the 2nd respondent stood satisfied.
C. SARAVANAN, J.
1. The above Civil Revision Petitions have been filed to set aside the common order dated 14.06.2018 passed in E.A.Nos.27 and 28 of 2018 in E.P.No.126/2001 in O.S.No.322/1997 on the file of the learned Principal Sub-Judge at Puducherry.
2. The petitioners in the above Civil revision petitions are wife and daughter of the 1st respondent/defendant who is the judgment debtor in O.S.No.322 of 1997.
3. One, Mr.Subrayan had originally filed the above suit. A preliminary decree was passed on 20.2.1998. There after, the said suit came to be decreed on 26.04.1999. Subsequently, the decree was made over in favour of 2nd respondent on 29.05.2000.
4. Thereafter, the 2nd respondent initiated execution proceedings vide E.P.126 of 2001. The petitioners were arrayed as respondents pursuant to an order dated 26.06.2009. The petitioners were set ex parte on 24.01.2018.
5. Under these circumstances, E.A. Nos. 27 and 28 of 2018 came to be filed by the petitioners. The first petitioner had filed an affidavit on behalf of herself as well as the second petitioner and the 1st respondent to set aside the order dated 24.01.2018, setting them ex parte and to stay the entire execution proceedings. The application was dismissed vide the impugned order dated 14.6.2018 on the ground that the execution proceedings have been pending since 2001 and the decree holder has been denied the fruits of the decree.
6. Heard Mrs.Hema Sampath, learned senior counsel appearing for the revision petitioners and Mr.I.C.Vasudevan, learned counsel for the second respondent and perused the materials available on record.
7. The 2nd respondent herein has vehemently contested that the prayer in civil revision petition on the ground that the petitioners are protracting and delaying the execution proceedings.
8. It is further submitted that the petitioners have no right over the property and cannot resist the execution and proclamation of sale which has already been ordered.
9. The 2nd respondent herein has also stated that parallel proceedings made in O.S.No.366 of 2006 was filed before the First Additional District Munsif, Puducherry, wherein, the petitioners have filed a suit against the husband/first respondent which was dismissed by judgment and decree dated 06.04.2018.
10. Learned Counsel appearing for the 2nd respondent also drew my attention to the appeal filed by the petitioners herein against the said judgment and decree of the First Additional District Munsif Court filed by the petitioner.
11. It is his submission that the Civil revision petition is not a bona fide and the petitioners herein cannot arrogate on themselves to protect the property of the 1st respondent and to make payment to the second respondent, in the absence of the first respondent. He further submitted that the amounts cannot be paid by the third party like the petitioners who are third party to the proceeding.
12. On Considering the above submissions, it is evident that the 1st respondent had borrowed money from different people and in some of the proceedings, judgment and decree came to be passed against the 1st respondent.
13. As far as this case is concerned, one Subrayan, S/o. Vinayaga Mudaliar filed O.S.No.322 of 1997 against the 1st respondent. The said suit was decreed on 26.04.1999.
14. The petitioners herein who are the wife and daughter of the 1st respondent-Judgment debtor are in a possession of the property which was proposed to be sold in a court auction. Petitioners are not a third party to the proceedings as they have been impleaded in the Execution Petition. Therefore, the contention that they are third parties and cannot make payments to the 2nd respondent
15. On the contrary, the 2nd respondent stepped into the shoes of the decree holder and has a limited right to receive the decree amount together with interest.
16. Only if the amount is not paid, he can have the property auctioned in the execution proceeding.
17. At the time of admission of the C.R.Ps, the petitioner was pe
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