C.R.P.(NPD)No.2691 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.08.2023

CORAM :

THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN

C.R.P(NPD)No.2691 of 2019

and CMP.No.17738 of 2019

Krishnasamy Chettiar (Died)

Govindasamy Chettiar (Died)

1.Jayam

2.G.Rajendran (Died)

3.G.Gajendran

4.G.Nagendiran

5.G.Selvendiran

6.G.Balavendran

7.R.Vasanthy

8.S.Amudha

9.Selvi

10.Tayanayaguy

11.Vijayendran @ Rengan

12.R.Rajalakshmi

... Petitioners

(P10 to P12 brought on record as LRs of the

deceased Petitioner-2 Viz.G.Rajendran vide Court

order dated 13.07.2023 made in CMP.No.6477 of 2021

in CRP.No.2691 of 2019)

vs

Velu Udayar (Died)

1.Poongothai

2.Santhi

3.Ramamurthy

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C.R.P.(NPD)No.2691 of 2019

4.Vasuki

5.Vasanthi

.. Respondents

Petition filed under Article 227 of the Constitution of India against

the Order dated 09.04.2019 made in the Memo filed in E.A.No.103 of

2018 in E.P.No.26 of 2004 in O.S.No.7 of 1977 on the file of Principal

District Munsif Court, Karaikal to set aside the same.

For Petitioners

: Mr.R.Thirugnanam

For Respondents

: Mr.T.M.Naveen (for R3)

No Appearance (for R2, R4 & R5)

R1 - Died

O R D E R

The petitioners before me are the judgment debtors. The suit had

been presented in O.S.No.7 of 1977 on the file of the learned Principal

District Munsif Court, Karaikal. The suit was decreed on 29.11.1979. An

appeal in A.S.No.1 of 1980 was allowed on 28.02.1981. The Second

Appeal, which was preferred therefrom in S.A.No.112 of 1982 was

allowed on 19.12.1991.

2.On the basis of the decree obtained, an Execution Petition was

filed in E.P.No.26 of 2004. In the said Execution Petition, the civil

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C.R.P.(NPD)No.2691 of 2019

revision petitioners filed an application under Section 47 of the Code of

Civil Procedure in order to declare the decree is inexecutable. The

application was dismissed by the trial Court on 22.07.2004. Against the

order passed under Section 47, a civil revision petition was preferred in

CRP.No.397 of 2005 and the same was dismissed on 06.06.2008.

3.In the meantime, the Execution Petition was closed, perhaps for

statistical purposes, with liberty to restore the E.P., if the need arises.

After the disposal of CRP.No.397 of 2005 on 06.06.2008, the judgment

creditors filed E.A.No.103 of 2018 to restore E.P.No.26 of 2004. In the

said application, notices were issued to the parties and they also entered

appearance through their counsel. At the time of issuance of notice, it

came to the knowledge of the parties as well as the Court that the first

judgment debtor, Krishnasamy Chettiar had passed away. Therefore,

applications were filed in E.A.No.159 of 2018 in E.A.No.103 of 2018 in

E.P.No.26 of 2004 and the same was pending.

4.Finding that the matter is pending consideration and being

delayed, the judgment debtors filed a memo stating that they want to

withdraw the E.P. with liberty to file a fresh petition to re-open

E.P.No.26 of 2004. The judgment debtors filed objection through the

third respondent on the ground that while they had no objection for

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C.R.P.(NPD)No.2691 of 2019

withdrawal of the petition filed to restore E.A.No.103 of 2018, they have

strong reservation for liberty being given for filing a fresh application on

the same cause of action.

5.Considering the objections of both sides, the Court decided to

order the memo and grant liberty to the parties to restore the E.P. by

filing a fresh application. Challenging the same, the present revision

petition has been presented.

6.I heard Mr.R.Thirugnanam, learned counsel, who appeared for

the judgment debtors/civil revision petitioners and Mr.T.M.Naveen,

learned counsel appearing for the decree holder.

7.Mr.Thirugnanam would contend that by way of a memo, liberty

should not have been granted and an appropriate application should have

been filed together with an affidavi