C.R.P.No.3968 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.08.2023

CORAM:

THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

C.R.P.No.3968 of 2022

S.Baskar

... Petitioner

Vs.

1. M.Subramanian

2. Jaisankar

... Respondents

Civil Revision Petition filed under Section 115 of Civil Procedure

Code to set aside the fair and decreetal order dated 26.10.2022 in

E.P.No.18 of 2013 in O.S.No.311 of 2007 passed by the learned District

Munsif, Kancheepuram and allow the present Revision Petition.

For Petitioner

: Mr.R.Sunilkumar

For Respondents : R1 and R2 – No appearance

O R D E R

The present Revision Civil Revision Petition has been filed to set

aside the fair and decreetal order dated 26.10.2022 in E.P.No.18 of 2013 in

O.S.No.311 of 2007 passed by the learned District Munsif, Kancheepuram

and allow the present Revision Petition.

2. The brief facts of the case is as follows:-

The petitioner, who is the plaintiff has preferred O.S.No.311 of 2007

against the respondents / defendants to set aside the sale deed dated

10.07.2002 in document no.1918/2002 on the file of Sub Registrar,

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C.R.P.No.3968 of 2022

Walajabad and to direct the 2^nd respondent / 2^nd defendant to handover the

vacant possession of the suit property to the petitioner / plaintiff. The said

suit was decreed on 12.07.2012. Subsequently, E.P.No.18 of 2013 was

filed by the petitioner and after a period of four years from the date of

decree, appeal was filed filed by the 2^nd respondent / 2^nd defendant and the

same was numbered as A.S.No.1 of 2017 and is pending. Further, the

said E.P.No.18 of 2013 was dismissed on 26.10.2022, as against the

same, the petitioner / plaintiff has come up with the present Revision.

3. The learned counsel for the petitioner would submit that the

learned District Munsif, Kancheepuram ought to have considered that it is

now a well settled principle of law that mentioning of a wrong provision or

non-mentioning of any provision of law would, by itself, is not sufficient to

take away the jurisdiction of a court, if it is otherwise vested in it in law.

4. Further, the learned cousel for the petitioner would contend that

the learned Principal District Munsif ought to have considered the accepted

legal principle that mere pendency of the appeal does not operate as stay

on the decree appealed against nor on the proceedings in the court below,

thereby pleaded to set aside the order passed by the court below.

5. Though notice was ordered through court and privately as early as

on 09.12.2022 and private notice was served on respondents 1 and 2,

there is no representation for the respondents either in person or through

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C.R.P.No.3968 of 2022

learned counsel.

6. Heard the learned counsel for the petitioner and perused the

documents placed on record.

7. It is relevant to point out that the court below has dismissed the

E.P.No.18 of 2013 on 26.10.2022 on two grounds, viz., (1) the petitioner

quoted Order 21 Rule 11(A) and Section 151 of CPC instead of Order 21

Rule 34 and 35 CPC in the Execution Petition (2) Execution Petition is not

maintainable on account of pendency of the appeal filed by the Judgment

debtor in A.S.No.1 of 2017.

8. It is necessary to deal with the first ground at first instance, viz.,

'quoting of wrong provision of Law'. This Court, in CRP No.1203 of 2001

dated 28.01.2002 reported in 2002(3) CTC 22 [Bhuvaneswari Vs.

R.Elumalai] at paragraph no.14 has held as follows:

“14.The time granted by the court for the representation of the

plaint, is only an administrative order and not a judicial order, and as

such, if there is any delay in the representation of the plaint, an

application to excuse the said delay could be filed under Section 151

CPC and it need not necessarily be the one under Section 148 CPC.

In fact, Section 151CPC is an omnibus provision available in th