Samuel Alias Manas and anr. Vs. Dasamma Nadathy and ors. - Court Judgment

Excerpt:
- orderk. sampath, j.1. the revision petitions arise under the following circumstances:a final decree for redemption in favour of the respondents herein was passed on 28.3.1977. the respondents filled execution petition in e.p.no. 413 of 1977. as they had not deposited the value of improvements, it was dismissed on 15.3.1978. thereafter, they filed afresh e.p. on 11.10.1985. it was returned on 17.4.1986 as the value of improvements had not been deposited. the same was re-presented with a challan for deposit for the value of improvements in 1997 (7.4.1997). the executing court directed the e.p. to be numbered on 9.4.1997. the petitioners herein received notice from court for appearance on 11.8.1997. the number shown in the notice was e.a.no. 85 of 1997, which was for excusing the delay in depositing the value of improvements. the petitioners filed e.a.no. l 14 of 1999 for setting aside the order dated 9.4.1997 passed by the executing court directing the execution petition to be numbered. both the applications were taken up jointly by the learned district munsif, kuzhithurai. by a common order the learned district munsif allowed the application e.a.no. 85 of 1997 for condonation of delay in depositing the amount and dismissed the application e.a.no. l 14 of 1999 filed for setting aside the order dated 9.4.1997 directing numbering of the execution petition. as against the common order in the said applications the present civil revision petitions have been filed.2. mr. t.r. rajaraman, learned counsel for the revision petitioners, vehemently contended that the final decree was passed as early as 28.3.1997 and there was no e.p. filed or pending within 12 years from 28.3.1997 and the learned district munsif ought to have dismissed e.a.no. 85 of 1997 and allowed the application e.a.no. l 14 of 1999. according to the learned counsel, on the date of presenting the application on 7.4.1997 the execution petition itself was barred by limitation. even otherwise, the learned district munsif erred in directing numbering of the execution petition without giving notice to the revision petitioners. the learned counsel submitted that power cannot be used to evade law of limitation and in the instant case, the lower court had exercised inherent powers to enable the respondents to evade the law of limitation. in support of his contentions, the learned counsel relied on the following judgments:(1) c. ganapathi mudalia. v. n. krishnamachari and ors. m.v. sundaresa ayyar v. pacala subba rao and ors. .3. mr. sreekumaran nair, learned counsel for the respondents, submitted that this was a case of delay in re-presenting the papers and this was entirely a matter between the applicant and the court and the respondents had no say in that. in support of this stand, the learned counsel relied on the following decisions:(1) y. cusbar v. k. subbarayan 1993 t.l.n.j. 375; (2) lakshminarayanan v. vaigundanamamani and anr. ; (3) s. saravanan (minor) represented by mother and next friend a. latha v. the chief judge court of small causes (motor accidents claims tribunal), chennai kannammal and anr. v. subatra (2000) 4 c.t.c. 127and the learned counsel also submitted that this was not a case decided, that proviso to section 15 of the code of civil procedure would operate and that the revisions were not maintainable. in support of this, he relied on the following decisions:(1) c.l. ramaiah thevar v. p.c. balarama raja subbian v. siva kumar chennichi alias parlkkal v. srinivasan chettiar s.n. kuba v. p.p.i. vaithyanathan 1988 t.n.l.j. 1 (d.b.).the learned counsel also relied on the decision in n. balakrishnan v. m. krishnamurthy and submitted that the exercise of discretion under section 151 cannot be disturbed under section 115 unless it was on wholly untenable ground or arbitrary or perverse.4. it was already been noticed that final decree was passed in the year 1977. immediately the respondents filed execution petition and the same was dismissed as the deposit as directed in the final decree for improvements had not been made. after nearly nine years, the respondents filed a fresh e.p. and the same was returned for non-compliance of the direction regarding deposit. for 11 long years the execution petition was not re-presented. only in 1997 the papers were re-presented along with the challan for payment of the amount representing the improvements charges. the learned district munsif directed the e.p. to be numbered. it does not appear whether any petition for condonation of delay in re-presentation was filed. only from the notice issued in the application filed for condonation of delay in making the deposit, the revision petitioners came to know about the e.p. having been numbered. thereafter, they took out an application for setting aside the order and directing the e.p. to be numbered. as regards the delay in re-presentation, the present legal position is that the court has to see that substantial justice does not suffer and the delay has to be condoned on taking a lenient view, however, directing the respondents to pay costs. 5. in y. cusbar v. k. subbarayan 1993 t.l.n.j. 375 (d.b.), there was a delay of 1191 days in representing the papers. the division bench held that the delay was condonable for doing substantial justice. in lakshminarayanan v. vaigundanamamani and anr. the delay of 581 days in re-presenting the papers was condoned with a direction to pay heavy costs. in s. saravanan v. the chief judge, court of small causes it was held that hyper technicalities should not sway the mind of the court and the presiding officer should not adopt a wooden attitude when such a request is made and such technicalities would put only shackles upon the cause of justice. the same principle has been reiterated in kannammal and anr. v. subatra . the decisions relied on by the learned counsel of the revision petitioner in c. ganapathi mudaliar v. n. krishnamachari and ors. (2)and m.v. sundaresa ayyar v. pacala subba rao and ors. a.i.r 1933 mad. 258 are cases where limitation intervened and it was held that, 'where the party had acquired a right by operation of the law of limition, the court had no inherent power to deprive the defendant of that right and to order the litigation to proceed'.6. this is not a case where any period of limitation would come into play. admittedly, the execution petition had been presented within the 12 years of the passing of the final decree. the question of limitation therefore does not arise. at the same time, we cannot overlook the inaction on the part of the respondents in not re-presenting the papers within a reasonable time. what had stood in the way was the non-availability of funds to make the deposit towards improvements charges as directed in the final decree. the respondents had taken their own sweet time to mobilise funds to comply with the directions in the final decree. because of their conduct matters have been unduly delayed causing great inconvenience to the revision petitioners. i would have in the ordinary course accepted the stand of the revision petitioners and allowed the revisions on account of the incorrigible conduct of the respondents. what holds my hand is the fact that this is a mortgage redemption suit and the revision petitioner had continued in possession of the hypotheca all the 11 years between 1986 and 1997 and had enjoyed the usufructs. at the same time, the respondents cannot get away without any liability to compensate the revision petitioner for the inconvenience caused to them.7. i am of the view that ends of justice would be met by directing the respondents to pay a substantial amount as and by way of costs. the amount directed to be paid by the respondents towards the value of improvements was deposited only in 1997. this was not paid at the time the e.p. was filed in 1985. the respondents will pay interest on the value of improvements at the rate of 12% per annum from 11.10.1985 till 7.4.1997 within a period of eight weeks from today. on such payment, the civil revision petitions will stand dismissed and the lower court will proceed further in execution. in case the amount is not deposited as directed above, the civil revision petitions will stand allowed and e.a.no. 85 of 1997 will stand dismissed and e.a.no. 114 of 1999 will stand allowed. the civil revision petitions are disposed of as above. the stay petition c.m.p.no. 18498 of 1999 is closed. there will be no order as to costs.

Judgment:
ORDER

K. Sampath, J.

1. The revision petitions arise under the following circumstances:

A final decree for redemption in favour of the respondents herein was passed on 28.3.1977. The respondents filled execution petition in E.P.No. 413 of 1977. As they had not deposited the value of improvements, it was dismissed on 15.3.1978. Thereafter, they filed afresh E.P. on 11.10.1985. It was returned on 17.4.1986 as the value of improvements had not been deposited. The same was re-presented with a challan for deposit for the value of improvements in 1997 (7.4.1997). The Executing Court directed the E.P. to be numbered on 9.4.1997. The petitioners herein received notice from court for appearance on 11.8.1997. The number shown in the notice was E.A.No. 85 of 1997, which was for excusing the delay in depositing the value of improvements. The petitioners filed E.A.No. l 14 of 1999 for setting aside the order dated 9.4.1997 passed by the executing court directing the execution petition to be numbered. Both the applications were taken up jointly by the learned District Munsif, Kuzhithurai. By a common order the learned District Munsif allowed the application E.A.No. 85 of 1997 for condonation of delay in depositing the amount and dismissed the application E.A.No. l 14 of 1999 filed for setting aside the order dated 9.4.1997 directing numbering of the execution petition. As against the common order in the said applications the present civil revision petitions have been filed.

2. Mr. T.R. Rajaraman, learned Counsel for the revision petitioners, vehemently contended that the final decree was passed as early as 28.3.1997 and there was no E.P. filed or pending within 12 years from 28.3.1997 and the learned District Munsif ought to have dismissed E.A.No. 85 of 1997 and allowed the application E.A.No. l 14 of 1999. According to the learned Counsel, on the date of presenting the application on 7.4.1997 the execution petition itself was barred by limitation. Even otherwise, the learned District Munsif erred in directing numbering of the execution petition without giving notice to the revision petitioners. The learned Counsel submitted that power cannot be used to evade law of limitation and in the instant case, the lower court had exercised inherent powers to enable the respondents to evade the law of limitation. In support of his contentions, the learned Counsel relied on the following judgments:

(1) C. Ganapathi Mudalia. v. N. Krishnamachari and Ors. M.V. Sundaresa Ayyar v. Pacala Subba Rao and Ors. .

3. Mr. Sreekumaran Nair, learned Counsel for the respondents, submitted that this was a case of delay in re-presenting the papers and this was entirely a matter between the applicant and the court and the respondents had no say in that. In support of this stand, the learned Counsel relied on the following decisions:

(1) Y. Cusbar v. K. Subbarayan 1993 T.L.N.J. 375; (2) Lakshminarayanan v. Vaigundanamamani and Anr. ; (3) S. Saravanan (Minor) represented by Mother and Next Friend A. Latha v. The Chief Judge Court of Small Causes (Motor Accidents Claims Tribunal), Chennai Kannammal and Anr. v. Subatra (2000) 4 C.T.C. 127

and the learned Counsel also submitted that this was not a case decided, that proviso to Section 15 of the Code of Civil Procedure would operate and that the revisions were not maintainable. In support of this, he relied on the following decisions:

(1) C.L. Ramaiah Thevar v. P.C. Balarama Raja Subbian v. Siva Kumar Chennichi alias Parlkkal v. Srinivasan Chettiar S.N. Kuba v. P.P.I. Vaithyanathan 1988 T.N.L.J. 1 (D.B.).

The learned Counsel also relied on the decision in N. Balakrishnan v. M. Krishnamurthy and submitted that the exercise of discretion under Section 151 cannot be disturbed under Section 115 unless it was on wholly untenable ground or arbitrary or perverse.

4. It was already been noticed that final decree was passed in the year 1977. Immediately the respondents filed execution petition and the same was dismissed as the deposit as directed in the final decree for improvements had not been made. After nearly nine years, the respondents filed a fresh E.P. and the same was returned for non-compliance of the direction regarding deposit. For 11 long years the execution petition was not re-presented. Only in 1997 the papers were re-presented along with the challan for payment of the amount representing the improvements charges. The learned District Munsif directed the E.P. to be numbered. It does not appear whether any petition for condonation of delay in re-presentation was filed. Only from the notice issued in the application filed for condonation of delay in making the deposit, the revision petitioners came to know about the E.P. having been numbered. Thereafter, they took out an application for setting aside the order and directing the E.P. to be numbered. As regards the delay in re-presentation, the present legal position is that the court has to see that substantial justice does not suffer and the delay has to be condoned on taking a lenient view, however, directing the respondents to pay costs.

5. In Y. Cusbar v. K. Subbarayan 1993 T.L.N.J. 375 (D.B.), there was a delay of 1191 days in representing the papers. The Division Bench held that the delay was condonable for doing substantial justice. In Lakshminarayanan v. Vaigundanamamani and Anr. the delay of 581 days in re-presenting the papers was condoned with a direction to pay heavy costs. In S. Saravanan v. The Chief Judge, Court of Small Causes it was held that hyper technicalities should not sway the mind of the court and the presiding officer should not adopt a wooden attitude when such a request is made and such technicalities would put only shackles upon the cause of justice. The same principle has been reiterated in Kannammal and Anr. v. Subatra . The decisions relied on by the learned Counsel of the revision petitioner in C. Ganapathi Mudaliar v. N. Krishnamachari and Ors. (2)and M.V. Sundaresa Ayyar v. Pacala Subba Rao and Ors. A.I.R 1933 Mad. 258 are cases where limitation intervened and it was held that, 'where the party had acquired a right by operation of the law of limition, the court had no inherent power to deprive the defendant of that right and to order the litigation to proceed'.

6. This is not a case where any period of limitation would come into play. Admittedly, the execution petition had been presented within the 12 years of the passing of the final decree. The question of limitation therefore does not arise. At the same time, we cannot overlook the inaction on the part of the respondents in not re-presenting the papers within a reasonable time. What had stood in the way was the non-availability of funds to make the deposit towards improvements charges as directed in the final decree. The respondents had taken their own sweet time to mobilise funds to comply with the directions in the final decree. Because of their conduct matters have been unduly delayed causing great inconvenience to the revision petitioners. I would have in the ordinary course accepted the stand of the revision petitioners and allowed the revisions on account of the incorrigible conduct of the respondents. What holds my hand is the fact that this is a mortgage redemption suit and the revision petitioner had continued in possession of the hypotheca all the 11 years between 1986 and 1997 and had enjoyed the usufructs. At the same time, the respondents cannot get away without any liability to compensate the revision petitioner for the inconvenience caused to them.

7. I am of the view that ends of justice would be met by directing the respondents to pay a substantial amount as and by way of costs. The amount directed to be paid by the respondents towards the value of improvements was deposited only in 1997. This was not paid at the time the E.P. was filed in 1985. The respondents will pay interest on the value of improvements at the rate of 12% per annum from 11.10.1985 till 7.4.1997 within a period of eight weeks from today. On such payment, the civil revision petitions will stand dismissed and the lower Court will proceed further in execution. In case the amount is not deposited as directed above, the civil revision petitions will stand allowed and E.A.No. 85 of 1997 will stand dismissed and E.A.No. 114 of 1999 will stand allowed. The civil revision petitions are disposed of as above. The stay petition C.M.P.No. 18498 of 1999 is closed. There will be no order as to costs.