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Mayandi Chettiar Vs. A.R. Senthilnathan - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai High Court
Decided On
Reported in(1985)2MLJ61
AppellantMayandi Chettiar
RespondentA.R. Senthilnathan
Cases ReferredJano Singh v. Brij Lal
Excerpt:
- .....on condition that the defendants in the suit should pay a sum of rs. 200 by way of costs to the decree-holder within six weeks from that date. that order was not complied with. hence, the ex parte decree passed in the suit, had become final. thereafter e.a.no. 183 of 1974 was filed by the decree-holder on 26th august, 1974 before the sub-court, devakottai, seeking an order to transmit the decree for execution to the district munsif's court, karur. that was ordered on 26th september, 1974. the papers were sent to district munsif's court, karur. while so, the code of civil procedure was amended in and by which, the decree pending before the district munsif's court, karur, could not be executed for want of jurisdiction. o.p.no. 126 of 1974 was filed by the decree-holder before the.....
Judgment:
ORDER

M.A. Sathar Sayeed, J.

1. The above revision is filed assailing the orders of the learned Subordinate Judge, Karur, made in E.P.No. 50 of 1979 in O.S.No. 21 of 1965, on 29th October, 1980.

2. The facts of the case are as follows: The respondent in this revision filed O.S.No. 21 of 1965 before the Sub-Court, Devakottai against the revision petitioner and others for the recovery of a sum of Rs. 33,000 odd. An ex parte decree was passed on 30th April, 1966 against the petitioner and those who figured as defendants in the suit. I.A.No. 315 of 1966 in O.S.No. 21 of 1965 was filed by the petitioner and others to set aside the ex parte decree which petition was dismissed on 3rd October, 1966. Aggrieved by the order of dismissal, civil miscellaneous appeal was filed before this Court and this Court allowed the civil miscellaneous appeal on condition that the defendants in the suit should pay a sum of Rs. 200 by way of costs to the decree-holder within six weeks from that date. That order was not complied with. Hence, the ex parte decree passed in the suit, had become final. Thereafter E.A.No. 183 of 1974 was filed by the decree-holder on 26th August, 1974 before the Sub-Court, Devakottai, seeking an order to transmit the decree for execution to the District Munsif's Court, Karur. That was ordered on 26th September, 1974. The papers were sent to District Munsif's Court, Karur. While so, the Code of Civil Procedure was amended in and by which, the decree pending before the District Munsif's Court, Karur, could not be executed for want of jurisdiction. O.P.No. 126 of 1974 was filed by the decree-holder before the District Judge, Tiruchy and in I.A.No. 228 of 1978 an order was passed by the District Judge, Tiruchirapalli on 30th January, 1979 to the following effect:

Interim stay granted on 29th August, 1978 is vacated so that the trial Court may return the E.P. on petition to enable the petitioner to present the E.P. in proper Court.

I have quoted the order of the District Judge as it is, for much depends on the wording of the order. In pursuance of the aforesaid order passed by the District Judge, Tiruchy, E.P.No. 111 of 1975 which was filed by the decree-holder before the District Munsif's Court, Karur was returned to the petitioner for presentation before the proper Court by his order, dated 27th

February, 1979. Thereafter the papers in E.P.No. 111 of 1975 which were returned to the respondent herein (decree-holder), were presented to the Sub Court, Karur having jurisdiction where the said execution petition was renumbered as E.P.No. 50 of 1979. Notices were sent to the judgment-debtors on the same date including the petitioner herein. It was contended by the judgment-debtors before the Subordinate Judge, Karur that the execution petition filed by the decree-holder before the Sub-Court, was barred by limitation. The Sub-Court, Karur after framing points for determination, held that the execution petition is not barred by time and thus the Sub-Court negatived the contention of the petitioner and others by its order, dated 29th October, 1980. Thereafter the matter was posted for settlement of terms on 7th November, 1980. It may at this stage be stated that there were three judgment-debtors, namely, Mayandi Chettiar, Muthal Achi and Palaniappan. It is only Muthal Achi and Palaniappan who questioned the order of the Sub-Court, Karur in E.P.No. 50 of 1979 dated 29th October, 1980 at the first instance, and in (sic) C.R.P.Nos. 3233 of 1980 and 332 of 1981. Sengottuvelan, J. by a common order, dated 26th day of February, 1982 dismissed the two civil revision petitions.

3. Before Sengottuvelan, J. it was contended by the two judgment-debtors that the transferee Court can entertain the execution petition only in pursuance of an order of the transferor Court and, since, there is no order of a transferor Court in this case to transmit the decree to the proper Court, the execution petition is not maintainable. Incidentally it was also contended by the said judgment-debtors that the decree is barred by limitation. While referring to Order 21, Rules 5 and 6, it was argued by the learned Counsel for the judgment-debtors before Sengottuvelan, J. that the act of the District Munsif, Karur in handing over the papers to the decree-holder direct for being - presented to the proper Court is contrary to law and also contrary to the provisions stipulated by Order 21, Rules 5 and 6, C.P.C. Sengottuvelan, J. on this aspect came to the conclusion that the contentions of the judgment-debtors cannot be sustained and therefore, dismissed the aforesaid revision petitions filed by the petitioner.

4. The present revision petition is filed by another judgment-debtor (Mayandi Chettiar) who was left out, and who was one of the parties to E.P.No. 50 of 1979 in O.S.No. 21 of 1965 as a second line of litigation, questioning the order of the Executing Court, dated 26th October, 1980 on the only ground that the District Munsif's Court, Karur, has no jurisdiction to pass the orders in E.P.No. 68 of 1979, dated 27th February, 1979 and that the order is passed contrary to. the provisions of Order 21, Rules 5 and 6, C.P.C. and that the Court below failed to note that the execution can be levied either by the Court which passed the decree or by the Court to which the decree is lawfully sent under Section 39, C.P.C. read with Order 21, Rules 5 and 6.

5. The only submission of Mr. Gopalaratnam, the learned Counsel for the petitioner is that Order 21, Rules 5 and 6 contemplated the mode of transfer of an execution petition to another Court for its execution. In this case the decree was transferred for its execution to the District Munsif's Court, Karur. But the District Munsif's Court finding that it had no jurisdiction, ought to have transmitted the papers to the Sub Court. Instead, the act of the Court in handing over the papers, on a petition filed by the decree-holder, direct to the decree-holder for being presented to the proper Court is illegal and contrary to the provisions of Order 21, Rule 5, C.P.C. Much emphasis was laid by the learned Counsel on the word 'shall send' found in Order 21, Rule 5, C.P.C. and it is on this ground that he contended that the execution papers should not have been handed over to the decree-holder by the District Munsif, direct; instead, the papers ought to have been sent through the process of court directly to the other Court, Sub-Court, Karur, having jurisdiction to execute the decree.

6. What happened in this case is that the decree was passed against the judgment-debtors for a sum of Rs. 33,000 odd on 30th March, 1966. After obtaining the decree, the decree-holder filed. E.A.No. 183 of 1974, before the Sub-Court, Devakottai, to transmit the decree to the District Munsif's Court, Karur, which Court was having jurisdiction prior to the amendment of the Code of Civil Procedure. The papers were transmitted to the District Munsif's Court at Karur. But after the amendment, the jurisdiction vested with the Sub-Court, Karur and not with the District Munsif's Court. That had led the decree-holder to file O.P.No. 126 of 1978 before the District Judge, Tiruchy and in I.A.No. 228 of 1978 it was prayed that the decree be transferred to the Sub Court, Karur, since the Court of District Munsif, Karur had no jurisdiction to execute the decree in view of the amendment of the Code of Civil Procedure. The District Judge, Tiruchy passed the order extracted supra, to the effect that the trial Court may return the E.P. on a petition to enable (the decree-holder) the respondent herein to present the E.P. in proper Court. This order of the District Court enabled the respondent decree-holder to file E.A.No. 68 of 1979 before the District Munsif's Court, Karur for the return of the E.P. and the papers were returned to the decree-holder direct which were presented on the same date to the Sub-Court, Karur which E.P. was renumbered as E.P.No. 50 of 1979. In other words, the District Munsif, instead of transmitting the papers to the Sub-Court, Karur, returned the papers to the decree-holder in view of the order passed by the District Judge in I.A.No. 278 of 1978, in O.S.No. 126 of 1978. This order of the District Court, Tiruchy, was not questioned by the revision petitioner at a higher forum. On a reading of the orders of the District Court and also considering the act of the District Munsif, Karur. I am of the view, that the entire mistake was committed by the Court and just because the Court has committed the mistake, the decree-holder respondent herein need not suffer on that score. The maxim actus curiae neminem gravabit - (act of Court should do no harm to a litigant) is applicable to the facts of the present case. The abovesaid maxim, has been more elaborately pointed out in a decision reported in Jano Singh v. Brij Lal : [1964]2SCR145 to the following effect:

It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Court cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.

7. That apart, the impugned order of the Sub-Court, Karur, was questioned by the other two judgment-debtors in C.R.P. Nos. 3233 of 1980 and 332 of 1981 and the arguments that were advanced before me were put forth before Sengottuvelan, J. and the learned Judge has come to the conclusion that the subsequent E,P.No. 50 of 1979 filed by the decree-holder before the Sub-Court can only be taken as a continuation of the proceedings in E.P.No. 111 of 1975 on the file of the District Munsif's Court, Karur, by ' virtue of the order of returning the papers by the District Munsif's Court, Karur, for presentation to the Sub-Court, Karur. I agree with the views of Sengottuvelan, J. expressed in C.R.P.Nos. 3233 of 1980 and 332 of 1981.

8. That apart, I find that in so far as the facts of the present case are concerned, the decree-rholder should not be penalised on a technical ground, as contended by the petitioner. It is not the case of the petitioner that the respondent has interpolated the dates in the execution petition. In fact no such allegations are made against the respondent herein. Therefore, the contention of the learned Counsel appearing for the petitioner that the decree-holder violated the provisions of Order 21, Rules 5 and 6, C.P.C. cannot be accepted on the particular facts and circumstances of this case. The powers of this Court under Section 115, C.P.C. are not to defeat the ends of justice but to subserve. Under the circumstances, I am of the view that this revision petition has to be dismissed and it is accordingly dismissed. There will, however, be no order as to costs.


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