Dismissed

Saratha, v. Kalavathi

Madras HC3 Sept 2021CRP/1019/2018

Case brief

AI extract

What is this about?

The court dismissed a civil revision petition challenging an order condoning a delay in restoring a dismissed execution petition. The court held the petitioner lacked locus standi to assail the order as her property claim was rejected. The execution court was directed to effect delivery of possession within four weeks.

What did the court decide?

The revision petition failed and was dismissed. The connected miscellaneous petition was also dismissed. Directions issued for delivery of possession within four weeks.

Saratha, Vs Kalavathi — Execution and Attachment | Madras HC (2021)

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 IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 17.08.2021
Pronounced on : 03.09.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

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C.R.P.No.1019 of 2018
and

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C.M.P.No.5410 of 2018

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Saratha .. Petitioner / 1st Respondent
Vs.
1.Kalavathi .. 1st Respondent / Petitioner
2.Munusamy
3.Gopalsamy .. 2 & 3 Respondents / 2 & 3 Respondents

¶8

PRAYER: Civil Revision Petition under Section 115 of the Code of
Civil Procedure against the fair and decreetal order of the
learned Principal District Munsif, Karaikal dated 11.02.2016 made
in E.A.No.18/2012 in E.P.No.20/1997 in O.S.No.215/1995.

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For Petitioner: Mr.S.Saravanakumar for
 Mr.I.Abrar Mohamed Abdullah

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For Respondents: Mr.Soundararajan for
 Mr.B.Gowthamarajan (for R1)
 No appearance for R3
 R2-Not ready in notice.

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ORDER

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This Civil Revision Petition arises out of the order
passed in E.A.No.18/2012 in E.P.No.20/1997 in O.S.No.215/1995 by
the Principal District Munsif, Karaikal, dated 11.02.2016.

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2.The brief facts of the case are that the first
respondent Kalavathi filed the suit O.S.No.215 of 1995 against
the respondents 2 and 3, namely, Munusamy and Gopalsamy for
recovery of possession of the suit property. The said suit was
decreed on 26.09.1996. The first respondent/decree-holder filed
the execution petition in E.P.No.20 of 1997 for delivery of the
suit property. The Executing Court issued warrant. The
petitioner obstructed the execution of the decree. Therefore,
the decree-holder was constrained to file E.A.No.427 of 1998

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https://hcservices.ecourts.gov.in/hcservices/

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under Order 21 Rule 97 r/w 151 C.P.C for removal of obstruction
caused by the petitioner herein. The Executing Court allowed the
application. However, the order of the Executing Court was
reversed by the appellate Court. On further appeal to this Court
in S.A.No.1570 of 2000, the order of the Executing Court was
restored vide Judgment and Decree dated 04.03.2011.

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3.In the meantime, the Executing Court vide order dated
05.06.2000 dismissed the execution petition on the basis of the
representation made by the Judgment Debtor. Admittedly, the
counsel for the plaintiff/decree-holder was absent, on which
date, the execution petition was dismissed. Thereafter, the
present application was filed to condone the delay 11 years, 1
one month and 3 days in filing the application to restore the
execution petition, which was dismissed for non-appearance on
05.06.2000. The delay was condoned by an order dated 11.02.2016.
Questioning the same, the present revision has been filed.

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4.It is the contention of the learned counsel appearing
for the petitioner that Section 5 of the Limitation Act would
not apply to the proceedings in execution petition. Further, the
inordinate delay of more than 11 years to restore the execution
petition was not explained and hence, the order is liable to be
set aside.

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5.Per contra, the learned counsel appearing for the first
respondent submitted that the petitioner was not a party to the
suit and her claim over the property was rejected in the second
appeal in S.A.No.1570 of 2000 and when the petitioner has no
right over the property, consequently, she has no locus standi to
file this revision.

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6.I find force in the contention of the learned counsel
for the first respondent for the reason that the petitioner
herein resisted the execution of the decree passed in O.S.No.215
of 1995 on the basis that she was the owner of the
superstructure. Though her claim was accepted by the appellate
Court in A.S.No.19 of 1999, however, in S.A.No.1570 of 2000, it
has been held that unregistered document (Ex.P.1) on the basis of
which, the petitioner claims, is factually unsustainable and the
finding in the Appeal Suit is illegal. It is further held that
the plaintiff/decree holder is entitled to get the relief as
sought for in her petition for removal of obstruction. It is
relevant to point out that the petitioner is none other than the
mother of the judgment debtor No.1 and she has no independent

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https://hcservices.ecourts.gov.in/hcservices/

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right over the suit property.

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7.From the perusal of the records, it is seen that the
Executing Court has gone in detail, before condoning the delay.
In my considered view, the reason assigned by the Executing Court
for condoning the delay need not be gone into as it has been
already held that the petitioner has no locus standi to assail
the order passed by the Executing Court. It is an admitted fact
that the Judgment Debtors have not challenged the order impugned
in this revision. It is appropriate to note that the petitioner
was added as respondent in the present application, even though
she was not a necessary party, which enabled her to file this
case.

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8.In the light of the above findings, I find no reason to

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interfere with the order of the Executing Court. In that view, this revision fails and the same stands dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

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9.Taking note of the fact that the Decree passed by the
competent civil Court dated 26.09.1996, could not be executed for
about two and half decades, the Executing Court shall pass
appropriate orders for delivery of possession of the suit
property within four weeks and shall not entertain any interim
application from either Judgment Debtor or from the third
parties.

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 Sd/-
 Assistant Registrar(CS-II)

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//True Copy//

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 Sub Assistant Registrar
skn

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To

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The Principal District Munsif, Karaikal.

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+1cc to M/s.B.Gowthamarajan, Advocate, S.R.No.44538

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+1cc to Mr.I.Abrar Md. Abdullah, Advocate, S.R.No.45103

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C.R.P.No.1019 of 2018

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and
C.M.P.No.5410 of 2018

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SSV(CO)

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SB(24/09/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Saratha, v. Kalavathi

Case brief

What is this about?

What did the court decide?

Saratha, v. Kalavathi

Case brief

What is this about?

What did the court decide?

What the court decided

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