Jancy Beula Esther Vs. V.K.Selvaraj - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

12. 02.2014 CORAM THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR C.R.P.[NPD]. No.3325 of 2011 and M.P.No.1 of 2011 Jancy Beula Esther ... Petitioner/Defendant .. Vs .. V.K.Selvaraj ... Respondent/Plaintiff Prayer:- Civil Revision Petition is preferred under Section 115 of the Civil Procedure Code, against the fair and decreetal order dated 04.07.2011 passed by the learned Subordinate Judge, Vaniyambadi, in E.P.No.3 of 2010 in O.S.No.24 of 2004 allowing the Execution Petition. For Petitioner : Mr.V.Jeevagiridharan For Respondent : Mr.Su.Srinivasan - - - - - ORDER

The Judgment Debtor in O.S.No.24 of 2004 on the file of the Sub Court, Tirupattur, is the petitioner in the present revision petition. The Decree Holder in the said suit is the respondent herein.

2. The suit was filed for the relief of specific performance of an agreement for sale. The prayer in the plaint was couched in such terms that the defendant should be directed to execute the sale deed in terms of the suit sale agreement, after receiving the balance sale consideration of Rs.1,00,000/- and that in the event of the failure on the part of the defendant to do so, the Court itself should execute the sale deed on behalf of the defendant in accordance with law.

3. The revision petitioner herein, who was the defendant in the said suit, did not contest the case and the trial Judge chose to set her ex-parte, conduct an ex-parte trial and pronounce a judgment on 02.08.2005 and based on the judgment, a decree was drafted. The decree directed the revision petitioner herein to receive the balance sale consideration within one month and to execute and register a sale deed in favour of the plaintiff. The decree provides further that in the event of failure on the part of the defendant/Judgment Debtor to do so, the respondent herein/plaintiff could deposit the balance amount of consideration into Court within 30 days thereafter and get the sale deed executed in his favour through Court. After depositing the balance amount of sale consideration into Court, the respondent herein/Decree Holder filed E.P.No.3 of 2010.

4. The revision petitioner/Jugment Debtor entered appearance and filed a counter contending that the decree was not drafted in tune with the judgment; that the relief granted as per the operative part of the judgment is different from the relief granted in the operative part of the decree and that hence, without rectifying the said mistake, the decree could not be executed. It was her further contention that the decree, as such, which was not in consonance with the judgment, could not be executed. In the Execution Petition, the Subordinate Judge simply made an observation that there was a mistake in the judgment and that such a mistake could be ignored and the decree could be executed. Accordingly, the Subordinate Judge rejected the objection raised by the revision petitioner herein/Judgment Debtor and directed execution of the sale deed in favour of the respondent herein/Decree Holder. As against the said order of the Court below dated 04.07.2011, the present Civil Revision Petition has been filed.

5. The arguments advanced by Mr.V.Jeevagiridharan, learned counsel for the revision petitioner and by Mr.Su.Srinivasan, learned counsel for the respondent are heard. The materials produced in the form of typed set of papers are also perused.

6. The Decree Holder in O.S.No.24 of 2004 on the file of Sub Court, Tirupattur, levied execution of the decree by preferring E.P.No.3 of 2010. A new Sub Court came to be established with the headquarters at Vaniyambadi after the passing of the decree and hence, on the point of jurisdiction, the Execution Petition came to be filed on the file of the Sub Court, Vaniyambadi. The Judgment Debtor, who remained ex-parte in the original suit, chose to contest the Execution Petition on the ground that the direction incorporated in the operative part of the judgment was nebulous and it contained no meaningful direction by directing the sale of the property in public auction in the event of default, without clearly mentioning on whose part. The revision petitioner also contended before the Executing Court that the decree sought to be executed was different from the operative part of the judgment and that hence, the decree could not be executed. The operative part of the judgment, as rightly pointed out by the learned counsel for the revision petitioner, does have such a nebulous and erroneous direction. For better appreciation, that part of the judgment is reproduced herehunder:- ".tHf;F bka;gpf;fg;gl;lJ/ vdnt tHf;F thjp ntz;oago bryt[ bjhifa[ld; jPh;g;ghiz gpwg;gpf;fgl;L. thjp fpua bjhifia gpujpthjpf;F brYj;j jtwpa ehspypUe;J30ehl;fSf;Fs; ePjpkd;wj;jpy; itg;gPL bra;a ntz;Lk; vd;Wk;. jtWk;gl;rj;jpy; ,d;wpypUe;J30ehl;fSf;Fs; tHf;F brhj;ij Vyj;jpw;F bfhz;L tut[k; chpikaspf;fg;gLfpwJ/".

7. A reading of the said part of the judgment will show how illogical the said direction is. It does not say the time within which the plaintiff in the suit for specific performance should pay the balance amount of sale consideration. However, it simply stated that in the event of default on the part of the plaintiff to pay the sale consideration to the defendant, the amount should be deposited into Court within 30 days from such default and that in the event of default in depositing the amount within 30 days also, the property should be brought for sale in auction within 30 days from the date of judgment. The judgment does not prescribe the period within which the balance sale consideration should be paid or deposited into Court. On the other hand, it simply says that the plaintiff should deposit the amount into Court within 30 days from the date on which he commits default in making payment of the balance sale consideration to the defendant. However, to the utter dismay of this Court, the judgment contains a further direction that in the event of default by the plaintiff, the property should be brought for sale in auction within 30 days from the date of judgment. However, the decree was drafted in the following manner:- ".1/ ghf;fp fpua bjhif U:/1,00,000/-I ,d;wpypUe;J30ehl;fSf;Fs; thjp brYj;Jk;gl;rj;jpy; gpujpthjp nkw;go bjhifia bgw;Wf; bfhz;L tHf;F brhj;J Fwpj;J thjpf;F fpua gj;jpuk; vGjp gjpt[ bra;J tHf;F brhj;ij xg;gilg;g[ bra;J bfhLf;f ntz;Lk; vd;Wk; cj;jutplg;gLfpwJ/ jtWk; gl;rj;jpy; md;iwapypUe;J30ehl;fSf;Fs; thjp ePjpkd;w eltof;iffs; K:yk; KG xg;gilg;g[ bra;J bfhs;st[k; mDkjp mspj;J cj;jutplg;gLfpwJ/ 2/ ,e;j tHf;fpy; bryt[ bjhifahf U:/30.005.50 I thjpf;F gpujpthjp brYj;j ntz;Lk; vd;Wk; cj;jutplg;gLfpwJ/".

8. Of course, the decree is quite logical. But a decree should be based on a judgment. When the judgment is so nebulous in the matter of relief or reliefs granted, the same cannot be rectified in drafting the decree. The decree holder, without rectifying the defect in the judgment, had chosen to levy execution by filing the Execution Petition. The revision petitioner herein/Judgment Debtor had raised a valid objection, which was improperly rejected by the Executing Court. Hence, the order of the Executing Court dated 04.07.2011 is liable to be set aside in exercise of the power of revision conferred on this Court.

9. In the result, this Civil Revision Petition is allowed and the order of the Subordinate Judge, Vaniyambadi, dated 04.07.2011, made in E.P.No.3 of 2010 in O.S.No.24 of 2004 is set aside. The E.P.No.3 of 2010 shall stand dismissed holding that the decree is not executable as it is not in consonance with the judgment. The respondent herein shall be at liberty to move for the rectification of the defects found in the judgment and thereafter, levy execution. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed. P.R. SHIVAKUMAR, J.

jrl The Registry shall place a note before My Lord, the Hon'ble The Chief Justice for taking necessary action against the Judicial Officer, who pronounced such a judgment. 12.02.2014 Index :Yes Internet :Yes jrl To The Subordinate Judge, Vaniyambadi. C.R.P.[NPD]. No.3325 of 2011