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The Tamil Nadu Government Rep. by its Secretary (Home) Chennai and Another Vs. Ameerdeen and Company Thiruvarur, Rep. by its Partner - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberC.R.P.(NPD)No. 2950 of 2016 & C.M.P.No. 14965 of 2016
Judge
AppellantThe Tamil Nadu Government Rep. by its Secretary (Home) Chennai and Another
RespondentAmeerdeen and Company Thiruvarur, Rep. by its Partner
Excerpt:
.....gold jewellery or to pay market value at prescribed amount to plaintiff with interest hence this civil revision petition court held - trial court had passed decree against revision petitioners - executing court was bound by decree passed by trial court and executing court cannot go beyond decree except where decree was ab initio void and without jurisdiction - when petitioners had every opportunity to contest suit, they did not utilize same and left suit to be decreed exparte - petitioners cannot raise all defences in section 47 application - petitioners also have not challenged order passed in order passed and same had become final - executing court had rightly dismissed application filed under section 47 of cpc - civil revision petition was dismissed. paras : (19, 20) cases..........file of x assistant judge, city civil court, chennai, the judgment debtors have filed the above civil revision petition. 2. the respondent-plaintiff filed the suit in o.s.no.217 of 1993 to direct the defendants to return the articles of gold jewellery or to pay the market value at rs.67,200/- to the plaintiff with interest. 3. the defendants remained absent before the trial court, hence, the trial court passed an exparte decree on 12.11.1997. thereafter, the 3 defendants filed an application in i.a.no.620 of 1996 to condone the delay of 821 days in filing the application to set aside the exparte decree. after contest, the trial court dismissed the application. 4. aggrieved over the same, the defendants filed a civil revision petition in c.r.p.no.201 of 1998 and this court, by order.....
Judgment:

(Prayer: Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the order and decreetal order dated 25.07.2016 made in E.A.No.1226 of 2014 in E.P.NO.266 of 2013 in O.S.No.217 of 1993 on the file of X Assistant Judge, City Civil Court, Chennai.)

1. Challenging the fair and final order passed in E.A.No.226 of 2013 in O.S.No.217 of 1993 on the file of X Assistant Judge, City Civil Court, Chennai, the judgment debtors have filed the above Civil Revision Petition.

2. The respondent-plaintiff filed the suit in O.S.No.217 of 1993 to direct the defendants to return the articles of gold jewellery or to pay the market value at Rs.67,200/- to the plaintiff with interest.

3. The defendants remained absent before the Trial Court, hence, the Trial Court passed an exparte decree on 12.11.1997. Thereafter, the 3

defendants filed an application in I.A.No.620 of 1996 to condone the delay of 821 days in filing the application to set aside the exparte decree. After contest, the Trial Court dismissed the application.

4. Aggrieved over the same, the defendants filed a Civil Revision Petition in C.R.P.No.201 of 1998 and this Court, by order dated 28.7.1999, dismissed the Civil Revision Petition. The defendants have not challenged the order passed in C.R.P.No.201 of 1998, hence, the said order has become final.

5. Pursuant to the decree passed in O.S.No.217 of 1993, the respondent-plaintiff filed an Execution Petition in E.P.No.260 of 2013 on the file X Assistant Judge, City Civil Court, Chennai. In the Execution Petition, the defendants filed an application in E.A.No.1226 of 2014 under section 47 of CPC. In E.A.No.1226 of 2014, the revision petitioners-judgment debtors, viz., the Secretary to the Government, Home Department and the Director General of Police have stated that the plaintiff filed a writ petition in W.P.No.15510 of 1990 to issue a writ of mandamus to direct the respondents therein to initiate action against the Inspector of Police and the Sub Inspector of Police in connection with the illegal seizure of 160 grams of gold articles from his shop on 11.08.1990. Further, they have stated that the gold jewels seized and the mahazar were lodged with the Judicial Magistrate Parangipettai as early as on 09.09.1990 under C.P.No.1131 of 1990. Further, the revision petitioners have stated that if at all the respondent-plaintiff is interested, he can seek his remedy before the Criminal Court and before the Civil Court. In the writ petition, this Court observed that the respondent-plaintiff can approach the Criminal Court seeking for return of the gold jewels. In the application, it has been stated that since this court had given liberty to the respondent-plaintiff to approach the Criminal Court, the suit filed by them is not maintainable. The petitioners have also stated that the respondent has wantonly not impleaded the Inspector of Police and the Sub Inspector of Police as defendants in the suit.

6. The respondent filed his counter wherein, they have stated that the issues raised in the section 47 application are beyond the scope of the said provision and the Executing Court cannot go into those aspects. The respondent has also stated that the Execution Petition was filed within the period of limitation.

7. On a perusal of Ex.P4, copy of the order passed in the writ petition, this Court held that if at all the respondent herein is interested, he can seek his remedy before the Criminal Court and not before the High Court.

8. Mr. V.Ayyathurai, learned Additional Advocate General General 5

appearing for the petitioners submitted that the jewels seized by the police from the respondent have been returned to the original owner by the Criminal court, therefore, the respondent cannot claim for return of the jewels or compensation from the petitioners.

9. Mr.J.Nandagopal, learned counsel appearing for the respondent submitted that 48 items were seized from the respondent and only 5 items were deposited in the Magistrate Court. Further, the learned counsel submitted that since all the 48 items were not deposited in the court, they could not approach the Criminal Court for return of the jewellery.

10. It is pertinent to note that the respondent sent Ex.P3 notice dated 11.09.1991 to the revision petitioners narrating all the facts. In spite of receiving Ex.P3 notice, the petitioners did not send any reply. In fact, in Ex.P3 notice, the respondent has stated that he engaged a counsel and his counsel, on verification from the records on the file of Judicial Magistrate, Parangipettai, found that all the 48 items of gold jewellery seized from the respondent were not produced before the Judicial Magistrate. The 48 items of gold jewellery seized from the respondent weighed 160 grams. In these circumstances, the respondent informed the revision petitioners that they are responsible for the 48 items of jewellery weighing 160 grams seized from them.

Since the jewels seized from the respondent were not deposited in the Magistrate Court, they could not approach the Criminal Court for return of the jewellery.

11. Having received Ex.P3 notice from the respondent, if the averments stated in the notice are found to be incorrect, in that case, the petitioners should have sent a suitable reply to Ex.P3 notice denying the averments stated therein. However, for the reasons best known to them, the petitioners remained silent. Therefore, the respondent had no other option except to file a suit for return of the jewellery or for recovery for the value of the gold jewellery.

12. Even in the suit, the revision petitioners received the summons and engaged the Government Pleader to appear on their behalf and the Government Pleader also took time for filing written statement, however, the petitioners did not file their written statement. Hence, the Trial Court passed an exparte decree on 12.09.1992. Thereafter, they filed an application in I.A.No.620 of 1996 to condone the delay of 821 days in filing the application to set aside the exparte decree stating that they were not aware of the decree passed in the suit. 7

13. As already stated, the Trial Court dismissed the application, which was also confirmed by this court in the Civil Revision Petition in C.R.P. No.201 of 1998.

14. The learned Additional Advocate General appearing for the revision petitioners submitted that in view of section 53 of the Tamil Nadu District Police Act, 1859 the suit filed by the respondent is not maintainable. As per section 53 of the Act all actions and prosecutions against any person which may be lawfully brought for anything done or intended to be done, under the provisions of the Act, or under he provisions of any other law for the time being in force conferring powers on the police shall be commenced within three months after the act complained of shall have been committed and not otherwise. Further, as per section 53, notice in writing of such action and of the cause thereof shall be given to the defendant or to the Superintendent or other Superior Officer of the District in which the act was committed, one month atleast before the commencement of the Act.

15. In the case on hand, the respondent issued Ex.P3 notice dated 11.9.1991 to the petitioners. However, the petitioners did not send any reply to Ex.P3 notice and remained silent. Even in the suit filed by the respondent, though they engaged the Government Pleader to contest the suit on their 8

behalf, no written statement was filed by them and they were set exparte and an exparte decree was passed as early as on 12.09.1997. In these circumstances, the provisions of Section 53 of the Tamil Nadu District Police Act, is not applicable.

16. The learned Additional Advocate General appearing for the revision petitioners in support of his contentions, relied upon an unreported judgment made in C.R.P.No.509 of 1992, dated 22.11.1991 wherein, this court held as follows:-

"26.Turning to article 227 of the Constitution of India, the power of superintendence of the Court is not only administrative but also judicial. It is open to this Court under that Article to interfere with a judicial order made by a subordinate court, if and when necessary. Vide In re Gangalakurthi Pattisam and others (MANU/TN/0296/1954: A.I.R.1954 Mad 573 : 67 L.W.24) Naryam Singh and another v. Amarnath and another (A.I.R.1954 S.C.215) Hari Vishnu Kamath v. Ahmad Ishaque and others (MANU/SC/0095/1954 L A.I.R.1955 S.C.233)"

17. The ratio laid down in the judgment relied upon by the learned Additional Advocate General cannot be disputed, however, since the facts and circumstances of the present case is totally different, the said ratio cannot be applied to the present case. 9

18. A decree can be said to be without jurisdiction and hence, as nullity if the court passing the decree has usurped a jurisdiction which it did not have. A mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the Executing Court to take cognizance of such a nullity based on want of jurisdiction. Hence, normal rule that an Executing Court cannot go behind the decree must prevail.

19. In the case on hand, the Trial Court had passed a decree against the revision petitioners. The Executing Court is bound by the decree passed by the Trial Court and the Executing Court cannot go beyond the decree except where the decree is ab initio void and without jurisdiction. When the petitioners had every opportunity to contest the suit, they did not utilize the same and left the suit to be decreed exparte. The petitioners cannot raise all the defences in section 47 application. The petitioners also have not challenged the order passed in the order passed in C.R.P.No.201 of 1998 and the same has become final. The Executing Court has rightly dismissed the application filed under section 47 of CPC. 10

20. In these circumstances, I do not find any error or irregularity in the order passed by the Executing Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.


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