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SANJAI AMMAL versus DHANALAKSHMI AMMAL

High Court of Madras

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Sanjai Ammal v. Dhanalakshmi Ammal - CRP.NPD.678 of 2007 [2007] RD-TN 2093 (27 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 27-6-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD Nos.678 and 695 of 2007

and

MP Nos.1 and 1 of 2007

Sanjai Ammal .. Petitioner in both revisions vs

Dhanalakshmi Ammal .. Respondent in both revisions Civil revision petitions filed under Article 227 of the Constitution of India against the orders dated 3.2.2007 made in R.E.P.No.165 of 2005 in O.S.No.104 of 1995 and REA No.625 of 2006 in REP No.165 of 2005 in O.S.No.104 of 1995 on the file of the Additional Subordinate Judge, Salem. For Petitioner : M/s.V.N.S. Law Firms For Respondent : Mrs.R.Meenal COMMON ORDER



This order shall govern these two revisions in CRP Nos.678 and 695 of 2007.

2.The Court heard the learned Counsel on either side.

3.Admittedly, an ex-parte decree came to be passed in O.S.No.104 of 1995, a suit for specific performance, on the file of the Additional Sub Court, Salem, against the petitioner herein as the second defendant and her husband as the first defendant, on 17.6.1998. I.A.No.153/98 was filed to set aside the ex-parte decree; but, the same was dismissed. The order became final since it was not set aside or challenged. Pursuant to the decree, the respondent herein namely the decree holder, filed E.P.No.152 of 1998 for execution of the sale deed. Pending the proceedings, the first judgment debtor died on 1.10.2004. The sale deed was actually executed through the Court in favour of the decree holder. Following the same, the present judgment debtor who is the revision petitioner herein, filed a suit in O.S.No.307 of 2006 to set aside the decree passed in O.S.No.104 of 1995, and the said suit is yet pending. While the matter stood thus, the revision petitioner filed an execution application to stay the execution proceedings. The same was dismissed. There arose C.R.P.No.695 of 2007. After the dismissal of the said E.A., the delivery was ordered in the E.P. Challenging the same, CRP No.678 of 2007 is brought forth. Thus, these two revisions have arisen before this Court.

4.The only contention put forth by the learned Counsel for the petitioner-judgment debtor is that while the suit filed by the petitioner herein in O.S.No.307/2006 seeking to set aside the decree passed in O.S.No.104/95, was pending, the lower Court should have allowed the application for stay, but not done so; that further, in the instant case, the delivery should not have also been ordered; that the lower Court before passing the order of delivery, should have considered the objections raised in the course of the counter affidavit filed there, but not done so, and thus, the orders are infirm and illegal and have got to be set aside.

5.The Court heard the learned Counsel for the respondent on the above contentions.

6.After careful consideration of the rival submissions made, this Court is of the considered opinion that the orders of the lower Court have got to be sustained. It is not in controversy that pursuant to a decree passed in O.S.No.104/95, the execution petition was taken in E.P.No.165 of 2005. It is also an admitted position that following the same, the execution of the sale was also made by the Court, and thus, delivery was pending. At that juncture, the suit in O.S.No.307/2006 was filed by the petitioner challenging the original judgment made in O.S.No.104/95. Mere filing and pendency of a suit seeking a declaration that the decree is not executable, cannot by itself operate as a stay. Further, the petitioner has filed an execution application seeking stay of the execution proceedings. The lower Court pointing to the entire circumstances, has given an elaborate order which is a reasoned one and thereby, dismissed the application. This Court is unable to notice any infirmity or illegality to interfere in that order. That apart, the only procedure what was to be done was to order delivery. Accordingly, it has been done. This Court does not find any infirmity in the said order. Hence, both the revisions require an order of dismissal, and accordingly, they are dismissed. No costs. Consequently, connected MPs are also dismissed. Index: yes 27-6-2007 Internet: yes

M.CHOCKALINGAM, J. Nsv/ To:

The Additional Subordinate Judge

Salem

nsv/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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