This judgment deals with civil revision petitions challenging the order of the Executing Court dismissing a petition for arrest of the decree-holder. The High Court held that as the decree itself was illegal and inexecutable, the Executing Court's order dismissing the arrest petition contained no infirmity.
No order as to costs; connected miscellaneous petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2019
C O R A M
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.R.P.(PD) Nos.1244 and 1245 of 2009
and M.P.No.1 of 2009
C.R.P.(PD) No.1244 of 2009
P.Subramanian ... Petitioner
Vs.
1. Rasayal
2. Umadevan
3. Thirumuruga Shankar
4. Kumaresan
5. Rani
6. Vembu
7. V.Kaliamoorthy ... Respondents
C.R.P.(PD) No.1245 of 2009
P.Subramanian ... Petitioner
Vs.
1. Umadevan
2. Kumaresan ... Respondents
PRAYER in C.R.P.(PD) No.1244 of 2009: The Civil Revision Petition is filed under Article 227 of Constitution of India, against the order of the I
2
Additional Subordinate Judge, Cuddalore, dismissing E.P.No.51 of 2006 in O.S.No.182 of 1998 by order dated 28.11.2008.
PRAYER in C.R.P.(PD) No.1245 of 2009: The Civil Revision Petition is filed under Article 227 of Constitution of India, against the order of the I Additional Subordinate Judge, Cuddalore, allowing E.P.No.276 of 2007 in
O.S.No.182 of 1998 by order dated 28.11.2008.
For Petitioner
in both C.R.Ps. : Mr.D.Baskar
For Respondents
in both C.R.Ps. : Mr.N.Selvaraju
- - - - -
C O M M O N O R D E R
The present revisions have been filed as against the order
passed by the Executing Court dismissing the Execution Petition under Section 47 of Civil Procedure Code, for arrest of the decree-holder on the ground that the decree obtained against judgment-debtor is inexecutable and no arrest can be ordered against them. The Executing Court allowed
the above application, against which, the present revisions are filed.
3
Brief facts leading in the instant Revision are as follows:-
the defendants for passing a preliminary decree in respect of the mortgage said to have been executed by father of the respondents. The suit has been laid after the death of the mortgagor. The legal representatives of the mortgagor were arrayed as defendants. Though the revision petitioner has filed the suit for preliminary decree based on the mortgage, the trial Court disbelieved the mortgage deed. However, the trial Court has granted personal decree against the defendants, who are the legal representatives. Based on such a decree, Execution Petition is taken up for seeking arrest of the respondents. At this stage, an application under Section 47 of Civil Procedure Code has been filed. Inter alia contending that the decree is inexecutable and has not been passed in accordance with law. The Executing Court allowed the application, against which, the present revision is filed.
4
would contend that the suit has been decreed after full contest and no appeal has been filed. Therefore, they are entitled to execute such a decree. The order passed by the trial Court is not in accordance with law and it cannot go beyond the decree. Hence, the petitioners prayed to
allow these revisions.
contend that the judgment and decree is not in accordance with law and
the personal decree could not have been passed against the defendants. Only the decree could have been passed for recovery of money from the assets of the father of the defendants. The trial court has erroneously passed such a decree, which is in fact against the law and the order of the Executing Court does not require any interference.
perused the materials placed before this Court.
5
decree-holder. It is to be noted that the suit has been laid on the basis of
the mortgage said to have been executed by the father of the defendants. Originally, the suit has been laid for preliminary decree. However, the trial Court found that the mortgage has not been proved and has passed the personal decree against the defendants. Passing of such a personal decree itself is not in accordance with law. At the most,
the trial Court should have directed that from the assets of the deceased, which are in the hands of the judgment-debtor, decree amount can be realized. No such direction was made in the decree, whereas, the judgment and decree has been passed as if the defendants are the parties to the contract and decree and judgment has been passed in personal capacity. Such a decree is inexecutable and even after the decree, the legal representatives shall be liable only to the extent of the
property of the deceased, which came to their hands. It is being the position of the law, the Execution Petition filed for arrest of the judgment-debtor is illegal and cannot be maintained in the eye of law.
6
order passed by the Executing Court. No doubt, the Court cannot go beyond the decree. At the same time, the decree itself is illegal and inexecutable under law. The Executing Court has power to decide the above issue under Section 47 of Civil Procedure Code.
In view of the above observations, these Civil Revision
Petitions are dismissed. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
05.03.2019
asi
Index : Yes/No
Internet : Yes/No
Speaking Order : Yes/No
7
To
The I Additional Subordinate Judge, Cuddalore.
8
N. SATHISH KUMAR, J.
asi
C.R.P.(PD) Nos.1244 and 1245 of 2009
and M.P.No.1 of 2009
05.03.2019
3 issues framed by the court
Whether there is any illegality or infirmity in the order of the Executing Court dismissing the execution petition for arrest of the decree-holder.
Whether the personal decree passed against legal representatives of a deceased mortgagor makes it executable against the persons.
Whether the High Court should intervene under Article 226 of the Constitution regarding the executing court's decision.
2 provisions across 2 enactments
P. Subramanian
Rasayal
Umadevan
Thirumuruga Shankar
Kumaresan
Rani
N. SATHISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
