Allowed

Mrs E.Bhavani Sankar v. Mrs Chandrasekaran

Madras HC16 Dec 2016CRP/3840/2012

Case brief

AI extract

What is this about?

Petitioner challenged an attachment order passing in execution proceedings despite a pending application to set aside the underlying ex parte decree. The Court allowed the revision, setting aside the attachment order and directing the trial court to decide the set aside petition expeditiously.

What did the court decide?

The attachment order dated 01.10.2012 in E.P.No.4322 of 2011 is set aside, and the trial court is directed to dispose of the application to set aside the ex parte decree expeditiously.

Mrs E.Bhavani Sankar Vs Mrs Chandrasekaran — Execution and Attachment | Madras HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 16.12.2016

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CORAM

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THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN

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CRP(NPD)No.3840 of 2012

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E.Bhavani Sankar Office: Superintendent (Accounts), Administrative Office Buildings, Chennai Port Trust, Chennai 600 001.

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.. Petitioner

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Vs.

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Chandrasekaran ..Respondent Prayer: Civil Revision Petition filed under Section 115 of Civil

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Procedure Code, against the attachment order of moveables in E.P.No.4322 of 2011 in O.S.No.539 of 2010, dated 01.10.2012, on the file of the X Assistant City Civil Court, Chennai.

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For Petitioner : Mr.T.Jayaramaraj

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For Respondent : Mr.R.Selvakumar

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O R D E R

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The case of the revision petitioner is that the respondent herein

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has filed a suit for recovery of money as against the petitioner herein on the basis of an alleged pronote dated 01.09.1998, said to have been executed by the revision petitioner. It was alleged by the

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respondent that the petitioner herein has availed a hand loan to the tune of Rs.20,000/- on 01.09.1998 from the respondent. Being so, alleging that neither the principal amount nor the interest was paid by the petitioner herein. The above said suit for recovery of money in the year 2009 came to be filed by the respondent, such that demanding Rs.20,000/- towards principal and Rs.12,000/- towards interest. The respondent entered appearance and sought permission to defend the above suit. However, the same was rejected and a Decree came to be passed Ex parte. The revision petitioner herein originally availed a loan of Rs.10,000/- during the month of October 1995, for that respondent has obtained 10 blank pronote and cheques as a security. The above loan of Rs.10,000/- was duly repaid by the revision petitioner even in the month of January 1996 itself.

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2.However, the respondent without returning the pronotes and cheques issued only for security purpose, has went abroad. Only some time before the filing of the suit, the respondent has returned from abroad. However, the respondent without returning the above said pronote and cheques with a view to harass and extract money from the revision petitioner has filed the above said suit. That apart the respondent has also filed the about six suits, with a malice intension to get a wrongful gain. The subject pronote filed in support

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of the suit is fabricated one and it is manipulated. It can be well understood from bare perusal of the pronote itself that some words were found typed and few were hand written. Further the suit is also hit by limitation, as the pronote filed is time barred one.

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3.However, in the said background, an ex-parte decree came to be passed as against the revision petitioner herein. Therefore the revision petitioner filed an application to set aside the ex-parte decree passed against him. However in the mean time the respondent herein filed execution petition in E.P.No.4322 of 2011 before the X Assistant Judge, City Civil Court, Chennai and same came to be allowed by an order and decree dated 30.07.2012. The said E.P order was to attach the movable properties of the revision petitioner, so as to satisfy the decree in suit in O.S.No.539 of 2010. The said order of attachment passed in the execution proceedings is impugned herein.

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4.I heard Mr.T.Jayaramaraj, learned counsel appearing for the petitioner and Mr.R.Selvakumar, learned counsel appearing for the respondent and perused all the records.

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5.The learned counsel for the revision petitioner submitted that

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the previous loan of Rs.10,000/- was borrowed from the respondent and the same was duly repaid by the petitioner herein. However, the respondent herein has chosen to file a suit for recovery of money on the basis of a fabricated pronote which is time barred. Therefore a fair trial is just and necessary, since the matter requires a number of issues to be framed and tried. However, the executing Court without appreciation of the very fact that there is an application to set aside the ex-parte decree is being filed by this revision petitioner, has erroneously allowed the execution petition. The order of attachment ought not to have been passed in the execution petition when set aside petition is pending before the Trial Court and the rights and liabilities of the parties are yet to be decided. Hence the execution petition is not at all maintainable.

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6.On perusal of the typed set of papers is found that there is an interlocutory application to set aside the ex-parte decree passed in the above suit is pending before the Trial Court. Further it is noticeable that the revision petitioner has deposited a sum of Rs.20,000/- to the credit of O.S.No.539 of 2010 vide Receipt No.162 dated 15.10.2012, as per the order of this Court dated 12.10.2012 made in M.P.No.1 of 2012. On taking into account of the above two factors, this Court is inclined to set aside the impugned order and the

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trial Court is hereby directed to decide upon the revision petitioner’s application challenging the ex-parte decree passed against him in the suit.

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7.In the result:

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(a) this Civil Revision Petition is allowed by setting

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the order in E.P.No.4322 of 2011 in O.S.No.539 of 2010, dated 01.10.2012, on the file of the X Assistant City Civil

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Court, Chennai;

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(b) the trial Court is directed to number and dispose

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the set aside petition filed by this petitioner/judgment debtor as expeditiously as possible. No costs.

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16.12.2016

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Note:Issue order copy on 24.05.2017 Internet:Yes Index:Yes

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The X Assistant City Civil Court, Chennai.

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M.V.MURALIDARAN, J.

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CRP(NPD)No.3840 of 2012

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16.12.2016

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http://www.judis.nic.in

Mrs E.Bhavani Sankar v. Mrs Chandrasekaran

Case brief

What is this about?

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Mrs E.Bhavani Sankar v. Mrs Chandrasekaran

Case brief

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What did the court decide?

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