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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Sellaravutha Gounder – Petitioner
Versus
V.M. China Gounder – Respondent
C.R.P. No. 3031 of 2021, C.M.P. No. 21463 of 2021
Decided On : 07-11-2024
ORDER :
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and final order dated 23.12.2020 made in E.A. No. 29 of 2012 in E.P. No. 22 of 2010 in O.S. No. 174 of 2009 on the file of Principal District Munsif Court, Bhavani.
1. Challenge has been made to the order dismissing the application in E.A. No. 29 of 2012 dated 23.12.2020 filed seeking to set aside the ex-parte order made in E.P. No. 22 of 2010.
2. The petitioner has filed an application to set aside the ex-parte order passed in E.P. No. 22 of 2010, wherein, the delivery order has been passed on 30.07.2010. According to the petitioner, the ex-parte order came to his knowledge only on 12.03.2012, when the Court officials came for effecting the delivery of possession. According to the petitioner, no notice was served on the petitioner and the petitioner's property is an ancestral property and there was no partition among the co-parcener. Therefore, sought to set aside the ex-parte order passed in E.P. No. 22/2010 dated 30.07.2010 before the Principal District Munsif Court, Bhavani in E.A. No. 29 of 2012. The said E.A was filed on 13.03.2012 and the same was dismissed on 23.12.2020 vide the impugned order. Challenging the said order, this revision petition has been filed.
3. The facts leading to this proceedings is relevant to be extracted:
(b) Subsequently, the first respondent executed the decree in O.S. No. 1077 of 1981 for realisation of the balance of the decree amount in E.P.R. No. 49 of 1994 by way of sale to an extent of 0.75.5 hectare and the petitioner purchased the same in the Court auction on 02.01.2002 and the sale was confirmed on 11.03.2002. In pursuance to the sale certificate, the second respondent filed an application in E.A. No. 346 of 2002 for possession and the same was ordered, the second respondent took symbolic possession on 26.06.2004 and the possession was recorded on 30.06.2004.
(c) Similarly, the petitioner's father Marappa Gounder borrowed a sum of Rs.2,550 from one Marakkal and executed a promissory note in her favour. On failure of repayment, the said Marakkal filed a suit in O.S. No. 1912 of 1979 on the file of learned District Munsif Court, Erode for recovery of money against the petitioner's father and the petitioner. The suit was decreed on 10.04.1981 and E.P.R. No. 47 of 1994 was filed by Marakkal to execute the decree for sale of properties of the judgment debtors. The suit property owned by Marappa Gounder to an extent of 0.50.0 hectares was brought for sale in public auction held on 02.02.2002 and the sale was confirmed on 11.03.2002 and sale certificate was issued in favour of first respondent/first plaintiff. In pursuance to the sale certificate, the first respondent filed an application in E.A. No. 344 of 2002 for possession and the same was ordered, the first respondent took symbolic possession on 26.06.2004 and the possession was recorded on 29.06.200
Proper service of notice is essential in execution proceedings; failure to follow mandatory procedures renders ex-parte orders invalid.
The court affirmed that proper procedures for ex-parte proceedings were followed, and the petitioner had knowledge of the case, validating the ex-parte order.
The executing Court must allow parties the opportunity to present their case and cannot proceed with execution if misleading information affects judicial integrity.
Court neither loses its jurisdiction after grant of decree for specific performance nor it becomes functus officio – If an ancillary or incidental relief is not granted, there would be no value to de....
The High Court, exercising its extraordinary jurisdiction under Article 227 of the Constitution of India, cannot reappreciate the evidence or substitute its subjective opinion in place of the finding....
Improper service claims cannot void an ex parte judgment if the defendant had prior knowledge of the proceedings, as judicial efficiency must be upheld.
An ex parte decree that is cryptic and non-compliant with procedural requirements cannot be executed; necessary amendments to parties and relief sought must be pursued to validate execution.
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