Partly allowed

T.Natarajan v. S.Tejraj,S/O Soganraj

Madras HC28 Oct 2020CRP/1457/2018

Case brief

AI extract

What is this about?

In Munsif Court execution proceedings, the judgment debtor moved to set aside ex parte orders regarding an amendment application. The High Court held that the executing court erred in dispensing with notice for the amendment, which substantially altered the relief sought. However, the stay application was allowed revised on merits.

What did the court decide?

Civil revision petitions allowed; impugned orders set aside; applications for condonation of delay allowed; executing court directed to proceed ex parte orders.

T.Natarajan Vs S.Tejraj,S/O Soganraj — Property and Title | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on Delivered on 16.10.2020 28.10.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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C.R.P.Nos. 1457 & 1458 of 2018

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and

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C.M.P.No. 7766 of 2018

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T.Natrajan ... Petitioner -vs1.S.Tejraj 2.T.Anithabai ... Respondents Prayer: Civil Revision Petitions filed under Section 115 of C.P.C., against the fair and decreetal orders in E.A.No. 153 of 2017 in E.A.No. 105 of 2017 in E.P.No. 53 of 2014 in O.S.No. 188 of 2006 and E.A.No. 154 of 2017 in E.P.No. 53 of 2014 in O.S.No. 188 of 2006 on the file of the District Munsif Court, Thiruvotriyur dated 15.03.2018.

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For Petitioner : Mrs.R.Poornima

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For Respondents : Mr.K.Prabhakaran

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These two civil revision petitions arose out of execution proceedings in E.P.No. 53 of 2014 launched by the respondents seeking execution of a decree for possession and mandatory injunction.

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The respondents, as plaintiffs, filed a suit in O.S.No. 188 of 2006 seeking following prayers :-

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“i) by directing the defendant to handover vacant possession of about 158 Sq.ft., measuring 4' ft., 10' inches East to West to a length of 33 ½ ft., being a Western end portion of Item 2 shown as Item 2 in 'B' schedule hereunder.

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ii) directing the defendant to remove the encroachment of an extent of about 8” ft. X 17ft., at the

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Western end of the 8' ft., passage and the septic tank at the Eastern end of the 8' ft. Passage, and also all other name boards, hanging wires, iron gates shown as Item 1 in 'B' schedule hereunder.

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iii) grant of permanent injunction restraining the defendant, his men and servants from causing any obstruction or construction in any manner in the 8' ft. passage in between Item 1 and 2 of 'A' schedule running to a length of 95 ft. leading to TH Road on the East.

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iv) pass such further or other reliefs as this Hon'ble Court may deem fit and proper.”

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The said suit came to be decreed exparte on 09.09.2009 as prayed for. An application in I.A.No. 944 of 2010 was filed by the defendant seeking to set aside the exparte decree. It is now claimed that the said application was withdrawn, since the execution petition filed by the decree holder in E.P.No. 53 of 2010 was withdrawn. It is claimed that there was some sort of an understanding between the parties regarding the enjoyment of the suit properties. The petitioner herein namely, the judgment debtor would also claim that the decree holder filed the second EP in E.P.No. 53 of 2014 contrary to the said arrangement seeking arrest of the judgment debtor under Order 21 Rule 32 of C.P.C, complaining of disobedience of the decree for permanent injunction. It is the further claim of the judgment debtor that the decreee holder gave a wrong address in the execution petition and took steps for service by publication.

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Pusuant to the publication, the judgment debtor was set exparte on 31.01.2017. Thereafter, the decree holder filed an application in E.A.No. 105 of 2017 seeking amendment of the execution petition to incorporate the following prayer :-

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i) by issuing a warrant for delivery of vacant possession of Item 1 of 'B' schedule property.

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ii) by issuing a warrant for the removal of whatever encroachment made in Item 1 in the 'B' schedule property.”

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This application for amendment was filed on 10.07.2017. Since the petitioner herein, the judgment debtor, had contended that no notice of the amendment application was served on him, I had called for the records. The records reveal that the contention of the judgment debtor is true. The order passed in I.A.No. 105 of 2017 namely, the amendment application, which seeks to alter the reliefs sought for in the execution petition from one for arrest to one for possession of immovable property, reads as follows:-

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“Heard, respondent set exparte in the main

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execution petition. Hence, notice to respondent is dispensed. The petitioner's side heard. Consequently, this petition is allowed. No costs.”

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Upon this order being passed the executing Court had adjourned the execution petition for carrying out amendment and filing of amended petition.

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It was at this stage, the petitioner herein had filed two applications in E.A.Nos. 153 & 154 of 2017 seeking condonation of delay in seeking to set aside the exparte orders passed in the execution petition and exparte order passed in E.A.No. 105 of 2017. The learned Trial Judge by the order impuged in these revisions had dismissed E.A.Nos. 153 & 154 of 2017 on the ground that the Section 5 of the Limitation Act could not be invoked in an application seeking to set aside the exparte order made in execution proceedings. Aggrieved, the judgment debtor has come up with these revisions.

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I have heard Mrs.R.Poornima, learned counsel for the petitioner and Mr.K.Prabhakaran, learned counsel for the respondents.

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Mrs.R.Poornima, learned counsel for the petitioner would vehemently contend that the executing court was not right in concluding that the application to condone the delay in filing a petition to set aside an exparte order in execution proceedings is not maintainable. She would invite my attention to the judgment of this Court in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd reported in 2011 (6) CTC 268 in support of her contention that an application for condonation of delay would lie de hors the provisions of Section 5 being made inapplicable to an application under Order 21 Rule 106(3) of C.P.C. She would also rely upon the judgment of the Andhra Pradesh High Court in Sale Ranga Swamy Vs. Special Collectorcum-Land Acquisition Officer, S.S.P., Kurnool reported in 2004 AIHC 2954 in support of her contention. My attention is also drawn to the judgment of a Hon'ble full Bench of Andhra Pradesh High Court in Ch.Krishnaiah Vs. Ch.Prasada Rao reported in 2010 (2) CTC 225 wherein, it was held that in view of the provisions of Order 21 Rule 106(4) (Andhra Pradesh Amendment), an application for condonation of delay would lie in a proceeding in execution also.

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The learned counsel would also rely upon the judgment of this Court in Pushparaj Vs. Rajayyan and others made in C.R.P.(MD)No. 613 of 2011 to butress her submission regarding the power of the Court to condone the delay in filing an application to set aside an exparte order made in execution

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proceedings. The learned counsel would also further point out that the amendment made to the execution petition by way of E.A.No. 105 of 2017 is contrary to the very decree that was passed by the Court in the suit. She would also point out that I.A.No. 1022 of 2014 filed by the decree holder seeking amendment of the plaint after the exparte decree was dismissed by the Trial Court on 12.03.2014. The prayer for amendment that was sought for in I.A.No. 1022 of 2014 reads as follows:-

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“i) by directing the defendant to handover possession of about 158 sq.ft., measuring 4' ft., 4' inches East West to a length 33 ½ ft. being the Western end portion of Item 1 shown as Item 1 in 'B' schedule hereunder.

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ii) directing to remove the encroachment of an extent of about 8' ft. X 10' ft. at the Western end of the 8' ft. passage and the septic tank at the Eastern end of 8' ft. passage and also all other name boards, hanging wires, iron gates shown as Item 2 'B' schedule hereunder.”

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This application was contested by the judgment debtor and it came to be dismissed on 12.03.2014. It is not in dispute that the said order has become final.

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Pointing out the above fact, Mrs.R.Poornima, learned counsel for the petitioner / judgment debtor would contend that the decree holders have stealthily got the prayer in the execution petition amended, after the application seeking amendment of the plaint was dismissed by the Trial Court on the original side. According to her, the executing Court erred greviously in allowing the application for amendment of the execution petition more so, when it relates to the vary the the mode of execution, without notice to the judgment debtor. Therefore, according to the learned counsel, the executing Court ought to have allowed the applications for condonation of delay and afford an opportunity to the judgment debtor to contest the proceedings.

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Contending contra, Mr.K.Prabhakaran, learned counsel for the respondents would submit that the executing Court was perfectly justified in dismissing the application for condonation of delay on the ground that Section 5 would not apply to an application filed under Order 21 Rule 106 of C.P.C. According to him, the amendment sought for is only in the mode of execution and what was sought to be executed was decree as granted by the Trial Court and therefore, the judgment debtor having remained exparte in the execution proceedings is not entitled to notice in the miscellaneous proceedings namely, the

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application for amendment. He would also rely upon the judgment of this Court in M.Ponnupandian Vs. Selvabakiyam and others reported in 2003 (4) CTC 225 to contend that Section 5 of Limitatiom Act cannot be invoked to condone the delay in filing an application to set aside an exparte order in an execution petition.

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He would also draw my attention to the judgment of the Hon'ble Supreme Court in State of Tripura Vs. Tripura Bar Association reported in AIR 1999 SC 1494 to contend that a coequal bench cannot take a different view in case of disagreement and the matter has to be referred to a larger bench. He would also rely upon the judgment of the Hon'ble Supreme Court in Innoventive Industries Ltd., Vs. ICICI Bank and others reported in 2017 (5) CTC 725 to butress his submission that the provisions of Order 21 Rule 105(4) (Madras amendment) would not survive in view of the amendment of C.P.C in 1999 and 2002. This legal submission is made by the learned counsel to counter the effect of the judgment of this Court in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd reported in 2011 (6) CTC 268. He would also draw my attention to the judgment of this Court in E.Shanmugam Vs. State of Tamil Nadu wherein it was held that there was no limitation for execution of a decree for permanent injunction. I have considered the rival submissions.

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Before going into the legal issues, the facts that led to these revisions needs to be set out chronologically in order to appreciate the legal issues in the proper perspective. The prayer in the plaint in O.S.No. 188 of 2006 reads as follows:-

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“12. Therefore the plaintiffs pray that this Hon'ble Court may be pleased to pass a judgment and decree against the defendant.

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i) by directing the defendant to handover vacant possession of about 158 Sq.ft measuring 4' X 10' East to West to a length of 33 ½ feet being the western end portion of Item No.2 shown as Item No.2 in the 'B' schedule here under.

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ii) directing the defendant to remove the encroachment of an extent of about 8' X 17' at the Western end of the 8' passage and the septic tank at the Eastern end of the 8' passage, and also all other name boards, hanging wires, iron gates shown as Item No.1 in 'B' schedule hereunder.

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iii) grant a permanent injunction restraining the defendant his men and servants from causing any obstruction or construction in any manner in the 8' passage in between Item No.1 and 2 of 'A' schedule

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running to a length of 95 feet leading to TH Road on the East.

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iv) pass such further or other relief as this Hon'ble Court may deem fact and proper.”

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13.1. The exparte decree granted in the suit is as follows:-

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“1/ fpHf;F nkw;fhf 4mo. 10 m';Fyk; Toa 33½ mo ePsKila jhth 'B' ml;ltiz brhj;jpy ;. ,dk; ,uz;oy ; Fwpg;gplg;gl ;Ls ;s nkw;F vy;iyg;gFjpapd; 158 Sq.ft. ,lj;jpd ; fhyp RthjPdj;ij gpujpthjp. thjpaplk; xg;gilf;fntz;Lk ; vd;W cj;jputplg;gLfpwJ/

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2/ 'B' ml;ltiz brhj;jpy; ,dk; xd;wpy; Fwpg;gplg;gl ;Ls ;s 8 mo tHpg;ghijapd; nkw;Fg ;gf ;fj ;jpy; 8' X 17' mst[s ;sJkhd Mf;fpukpg;g [ kw;Wk ; 8' moghijapd; fpHf;F K:iyapy; cs;s fHpt[ePh; bjhl;o kw;Wk ; midj;Jg ; bgah; gyiffs;. bjh';fpf; bfhz;oUf;Fk ; xah;fs ; ,Uk;g [f ; fk;gpfs; Mfpatw;iw gpujpthjp mfw;w ntz;Lk ; vd;W cj;jputplg;gLfpwJ/

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3/ T.H.nuhl;od ; fpHf;F Kfkhf mike;Js ;s 95 mo ePsKs;sJkhd jhth 'A' ml;ltiz brhj;jpy ; ,dk; 1 kw;Wk; 2 Mfpatw;wpw;F ,ilna ,Uf;Fk ; 'B' ml;ltiz brhj;jpy; gpujpthjpnah. mtuJ Ml;fnsh. ntiyahl;fnsh ve;jtpjkhd fl;olnkh fl;lf ;TlhJ ,ila{Wk; bra;af ;TlhJ vd;W epue;ju cWj;Jf ;fl ;lis ghpfhuk; mspf;fg ;gLfpwJ/

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4/ gpujpthjp/ thjpf;F tHf;F bryt[j ; bjhifahf U:/ 1417/- brYj;j ntz;Lk ;/

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2009k; Mz;L brg;lk ;gh ; khjk; 9k; ehs; vd;dhy; ifbahg;gkplg;gl ;L ,e;ePjpkd;w Kj;jpiua[ld ; tH';fg ;gLfpwJ/”

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13.2. The description of the property in the decree is as follows:-

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Item No.1

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The house, ground and premises leaving door No.247/5, T.H.Road comprised in S.No.237/1, Thiruvottiyur High Road, in Madhavaram Firka, Ambathur Taluk, having a total extent of about 316 ¼ Sq.ft., measuring North to South 13 ¾ feet on both sides, East to West 23 feet on the both sides, bounded on the North by property of Sathyanarayanan South by common passage with a width of 8 feet leading to T.H.Road, East by Natarajan's property

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and West by Natarajan property.

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Item No.2

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The house, ground and premises bearing the Door No.247/2 T.H.Road, Thiruvottiyur Village, Madhavaram Firka, Ambathur Taluk, having a total extent of 1217 Sq.ft., measuring 33 ½ feet North to South on either side, East to West 36 feet 4 inches on both sides. Bounded on the North by 8 feet passage South by property of late Baskaran now by Padmavathi, East by property of Powribai, and West by passage of Anithabai and beyond the passage Nandagopal's property now by defendants property.

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'B' Scheduld Property encroached portion by defendant

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Item No.1

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The vacant having a total extent of about 158 Sq.ft, measuring 4 feet 4 inches East to West to a length of 33 ½ feet North to South comprised in S.No. 237/1 T.H.Road, Thiruvottiyur, Madhavaram Firka, Ambathur Taluk bounded on the North by 8 feet passage, South by property of Baskaran and Padmavathi. East by remaining portion of Item No. 2 of 'A' schedule and West by property of defendant.

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Item No.2

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Also the peice of land being the portion of common passage of its western end measuring 8 feet North to South and 17 feet East to West with a total extent of 136 Sq.ft in S.No. 237/1 bounder on the North by defendants property, South by defendants property East by remaining portion 8 feet common passage leading to T.H.Road and west by property of Rajendran and Manali Ramakrishnan Mudaliar property now owned by Munuswamy Naidu.”

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13.3. The prayer in I.A.No.1022 of 2012 which sought for amendment of the plaint after the exparte decree is as follows:-

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wires, iron gates shown as Item 2 'B' schedule hereunder.”

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The application for amendment in I.A.No. 1022 of 2012 was dismissed on 12.03.2014.

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13.4. The prayer in the execution petition in E.P.No. 53 of 2014 reads as follows:-

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“ By an order for arrest and detention of the judgment debtor / respondent for disobeying the decree for permanent injunction not to interfere with the right of the petitioner in the 8 feet common passage being the relief No.3 in the decree for a period of not less than six months”

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13.5. The prayer in E.A.No. 105 of 2017 namely, the application for amendment which was allowed without notice to the judgment debtor is as follows:-

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“i) by issuing a warrant for delivery of vacant possession of Item 1 of 'B' schedule property.

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ii) by issuing a warrant on removal of whatever encroachment made in item 1 in the 'B' schedule property.”

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It is the order allowing E.A.No. 105 of 2017 and the order setting the respondents exparte in E.P.No. 53 of 2014 dated 16.02.2017 that was sought to be set aside by the judgment debtor. The applications for setting aside those orders were accompanied by the E.A.Nos. 153 & 154 of 2017 seeking condonation of delay of 34 days and 178 days respectively. The petitioner / judgment debtor was served by publication in the execution proceedings therefore, it is the date of knowledge of the execution proceedings that would give him the cause of action to set aside the exparte orders.

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According to the petitioner, he came to know about the exparte orders only on 19.08.2017 when his Vakalat was not accepted. The applications for setting aside the exparte orders along with an application for condonation of delay were filed on 13.09.2017. Therefore, strictly there is no delayin filing the applications. However, the petitioner has by way of an abundant caution filed the above two applications seeking condonation of delay. As already adverted to, the application in E.A.No. 105 of 2017 which was allowed by the Trial Court on 14.07.2017, after dispensing with notice to the respondent. The said procedure is unknown to law. No doubt, the Court is empowered to dispense with notice, to the respondent who had remained exparte, in the subsequent stages of the suit or proceeding but the said provision cannot be invoked when the prayer in the main proceedings itself is sought to be altered from one for arrest

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to one for recovery of possession of immovable property.

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Yet another important factor that was overlooked by the executing Court is that the amended execution petition which is now pending on the file of the executing Court is contrary to the very decree granted in the suit. The decree has been extracted above. Clause 1 of the decree provides for recovery of possession of a certain extent of property shown as Item 2 of 'B' schedule to the decree. Clause 2 of the decree directs removal of certain encroachment said to have been made by the defendant over Item 1 of Schedule 'B' to the decree. Clause 3 grants a permanent injunction restraining the defendant from putting up any construction or obstruction over the 95 feet pathway situated between 'A' and 'B' schedule properties. The amended prayer in the execution petition seeks a warrant for the delivery of possession of Item 1 in the 'B' schedule property, warrant for removal of encroachment made in Item 1 in the 'B' schedule proeprty. Needless to point out that there is no decree for the first relief namely, for delivery of vacant possession of Item 1 in 'B' schedule property in the decree granted.

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It will be pertinent to point out at this juncture, the application seeking amendment of the plaint in I.A.No. 1022 of 2012 to the same effect was dismissed by the Trial Court after notice to the judgment debtor on 12.03.2014. By dispensing with the notice in E.A.No.105 of 2017, the executing Court had fallen into trap set by the decree holder to get an non-existant decree executed without notice to the judgment debtor.

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Coming to the legal issues addressed by the learned counsel on either side, in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd reported in 2011 (6) CTC 268 Hon'ble Justice V.Ramasubramanian as he then was had extensively considered the availability of the power to condone the delay in seeking to set aside the exparte orders passed by the executing Court and had concluded that the Madras amendment which introduced Sub-rule 4 (2) to Rule 105 of Order 21 C.P.C does not run counter to any of the central amendments and therefore, it is not shown to be inconsistent with any of the amendments introduced either in 1976 or 1999 or 2002 and therefore, the executing Court has the power to condone the delay in filing an application under Order 21 Rule 106 of C.P.C. I am in respectful agreement with the views expressed by the Hon'ble Judge.

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A similar issue was considered by a Hon'ble full bench of the Andhra Pradesh High Court in Ch.Krishnan Vs.

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Ch.Prasada Rao reported in 2010 (2) CTC 225 wherein, amendment made by the Andhra Pradesh High Court to Rule 106 of Order 21 of C.P.C akin to the amendment made by Madras High Court to Order 21 Rule 105 with effect from 01.11.1972 was considered. The amendment in Andhra Pradesh was introduced in 1992 by vide publication in ROC 2475/SO/91 wherein, Sub-rule 4 was added to Rule 106. The amended Order 21 Rule 106 as applicable in Andhra Pradesh reads as follows:

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"Order 21 Rule 106: Setting aside orders ex parte, etc. :--(1) The applicant, against whom an order is made under Sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex-parte under Subrule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

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(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.

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(3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex pane order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.

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(4) The provisions of Section 5 of Indian Limitation Act, 1963, shall apply to all applications under Sub-rule (3).”

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(Emphasis supplied)

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The Hon'ble Full Bench also took note of the effect of the amendment and concluded that not withstanding the repealing provisions contained in 1999 and 2002 amendment Acts. Order 21 Rule 106(4) of C.P.C as inserted by the High Court in exercise of powers under Section 122 of C.P.C enables a party to the proceeding to file an application under Section 5 of the Limitation Act seeking condonation of delay in filing the application to set aside the exparte order passed under Order 21 Rule 106(1) of C.P.C. This view of the Hon'ble Full Bench supports the view of Hon'ble Justice V.Ramasubramanian, as he then was, in N.Rajendran Vs. Shriram Chits Tamil Nadu Pvt. Ltd reported in 2011 (6) CTC 268.

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Therefore, I am of the considered opinion that the Trial Court was in error in dismissing the applications in E.A.Nos. 153 & 154 of 2017 as not maintainable. As far as the reasons that are set out in the applications, I have already pointed out that in the execution petition, the judgment debtor was served by publication that too when the execution petition was one for arrest under Order 21 Rule 32 of C.P.C. The procedure adopted by the Trial court in allowing E.A.No.105 of 2017 namely, the amendment application without notice to the judgment debtor is per se illegal and the order in E.A.No. 105 of 2017 deserves to be set aside on that very short ground.

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However, in view of the fact that the applications for setting aside the exparte orders are pending before the executing Court, I do not wish to invoke my powers under Article 227 of the Constitution of India to set aside those orders. From the reasons set out in the affidavits filed in support of E.A.No.153 & 154 of 2017, I find that the judgment debtor / petitioner herein has assigned sufficient cause for condonation of delay. I have also find that no order has been passed by the Trial Court under Order 21 Rule 105(3) of C.P.C. All that has been done is to set the judgment debtor exparte. No order was passed thereafter. The application that is filed seeking to set aside the order dated 16.02.2017 is only akin to an application under Order 9 Rule 7. Therefore, the question of limitation itself may not arise.

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For the foregoing reasons, both the civil revision petitions are allowed, the orders impugned are set aside, E.A.Nos.153 & 154 of 2014 will stand allowed. The executing Court shall number the applications for setting aside the exparte order dated 16.02.2017 in E.P.No. 53 of 2014 and for setting aside the order dated 14.07.2017 in E.A.No. 105 of 2017 and proceed with the same in accordance with law. No costs.

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Sd/Assistant Registrar

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Sub Assistant Registrar

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kkn

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To:-

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The District Munsif Court, Thiruvotriyur.

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