C.R.P.NPD.No.4736 of 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 19.09.2019

CORAM:

THE HONOURABLE MR. JUSTICE R.PONGIAPPAN

C.R.P.NPD.No.4736 of 2014

& M.P.No.1 of 2014

Chidambara Konar

.... Petitioner

Vs

Thayumanava Devar

.... Respondent

PRAYER: Civil Revision Petition is filed under Article 227 of the

Constitution of India, to set aside the order dated 27.03.2014 passed in

Unnumbered E.A. in E.P.No.5 of 2014 in O.S.No.145 of 2005 on the file

of the learned District Munisf-cum-Judicial Magistrate, Vedaranyam.

For Petitioner

: Mr.E.Karthik Raja

for Mr.G.Karthikeyan

For Respondent

: Mr.R.Murugabharathi

O R D E R

Aggrieved over the order dated 23.07.2014, made in

Unnumbered E.A. in E.P.No.5 of 2014 on the file of the learned District

Munsif cum Judicial Magistrate, Vedaranyam, the petitioner, who is the

judgment debtor in the above said execution proceedings, preferred this

Civil Revision Petition to set aside the rejection order passed by the

Court below.

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C.R.P.NPD.No.4736 of 2014

2. Initially the respondent in this revision petition has filed a

suit in O.S.No.145 of 2005 on the file of the District Munsif Court,

Nagapattinam, as against the petitioner herein and sought for the relief

of direction, directing the petitioner/defendant to pay the suit amount

along with costs. On 29.06.2006, the learned District Munsif,

Nagapattinam, allowed the suit and passed a judgment and decree in

favour of the respondent. Based on the said decree on 17.11.2007, the

respondent filed an execution petition in E.P.No.31 of 2008 and the

same was subsequently closed. Again on 09.04.2013, the respondent

filed second execution petition in E.P.No.11 of 2013, by order dated

20.11.2013, the said execution petition was dismissed for non

prosecution.

3. Only thereafter on 26.02.2014, the respondent has filed the

third execution petition in E.P.No.5 of 2014, which is the subject matter

of this Civil Revision Petition. Now on going through the impugned

order passed by the trial Court, it appears that the petitioner was not

turned up after receiving the notice from the trial Court. Hence on

27.06.2014, the learned trial Judge passed an order of arrest against

the petitioner. Only in the said circumstances, the petitioner herein filed

an application to set aside the order dated 27.06.2014 and the same

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C.R.P.NPD.No.4736 of 2014

was rejected on 23.07.2014 as not maintainable. Challenging the said

rejection order, the petitioner is before this Court.

4. In fact the order challenged now is a docket order, which

reads as follows:-

"On perusal of available records petitioner

is set exparte on 21.03.2014. Hence, petition is

rejected as not maintainable. sd/- 23.07.2014"

In fact, the said order passed by the execution Court is not in

accordance with the provisions of C.P.C. In fact, in view of the

amendments made in Order XXI Rule 37 of the Code by Act XXI of

1936, the Court shall issue a notice to the judgment debtor before

issuing a warrent of his arrest in execution of decree, unless the Court

is satisfied by an affidavit or otherwise, that the judgment debtor is

likely to abscond or leave the limits of the jurisdiction of the Court with

the object of delaying the execution of the decree. In this case, even

though there is a provision available for recalling the order of arrest,

before passing the order, it is necessary to see the back ground of the

case pertains to the execution petition.

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C.R.P.NPD.No.4736 of 2014

5. Actually the decree holder filed a suit for recovery of money in

the year 2005. Thereafter, after obtaining the decree in his favour, he

filed three execution petitions for realizing a sum of Rs.29,737/-. It is

also came to the knowledge of this Court through the learned counsel

appearing on behalf of the respondent/plaintiff that after filing