High Court · 2025
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EP No.88 of 2023MASTER20.08.20251. This EP is filed by the petitioner/decree holder U/O 21 R 34 of CPC to direct the Assistant Registrar (OS) to execute the sale deed on behalf of the Judgment Debtor's and in favour of the Decree Holder or his nominee.2. The averments of the petitioner/decree holder is that he had filed the suit in CS No.473/2002 seeking a direction against the defendants therein to execute a sale deed in favour of the plaintiff or his nominee on receipt of balance sale consideration of Rs.90,000/-(Rupees Ninety Thousand Only) in respect to the property described in the EP schedule. The suit was decreed on 08.03.2010 in favour of the petitioner. Thereafter the petitioner had filed an application to condone the delay of 3907 days in depositing the sale consideration of Rs.90,000/-(Rupees Ninety Thousand Only) and the same was allowed in A No.892/2021 on 04.04.2022 with a direction to deposit the sale consideration of Rs.90,000/- on or before 25.04.2022. The said conditional order was complied by the petitioner and immediately this EP came to be filed.3. 1st Respondent/1st Judgment Debtor has filed his counter stating that he was the power of attorney holder for Judgment debtors 2 to 8 and in that capacity he had acted upon and executed a sale agreement by fixing sale price in respect of schedule property and received the advance amount of Rs.14,10,000/- from the petitioner and paid it to the Judgment Debtors 2 to 8. Further stated the petitioner has filed this EP to execute the exparte decree dated 08.03.2010 obtained in CS No.473/2002 and now that he does not have any role in respect of the property and the execution can be made only against the JD2 to 8 who are the original owners of the property and since he had already paid the https://www.mhc.tn.gov.in/judis advance amount to the Judgment Debtor 2 to 8. Hence the petition is to be dismissed against him. 4. The judgment debtor 2 to 8 has filed their counter stating that the petitioner has obtained the decree in CS No.473/2002 behind their back and it is an exparte decree. Further they state that they came to know about the exparte decree only after receipt of court notice in the above EP and that the 1st Judgment debtor had fraudulently created the false documents with ill motive and thereafter failed to contest the suit only with an intention to get an adverse order in respect of the EP schedule property. Hence this EP is to be dismissed.5. Judgment debtors 9 and 10 has filed their counter reiterating the counter of Judgment debtor 2 to 8 by stating that the exparte decree in CS No.473/2002 was obtained by petitioner/decree holder in collusion with JD1 behind their back without any notice to them in the suit.6. Point for consideration:(i) Whether the amount of Rs.90,000/- deposited by the Decree holder subsequent to the order in A.No.892 of 2022 dated is towards balance sale consideration or towards costs?(ii) Whether the decree holder is entitled to an order of execution of sale deed of the schedule mentioned property in his favour by the Assistant Registrar (OS) on behalf of the Judgment Debtors 1 to 10?7. Heard both sides, perused the records and the written submissions filed by the Petitioner. The decree holder had filed a suit directing the defendants to execute a sale deed in favour of the plaintiff or his nominee on receipt of balance sale consideration of Rs.90,000/- (Rupees Ninety Thousand Only) with respect to the https://www.mhc.tn.gov.in/judis schedule mentioned property and the suit was decreed on 08.03.2010. Even after the decree, the Judgment debtors had not executed the sale deed in favour of the plaintiff/Decree holder till date. Hence, this Execution Petition is filed to direct the Assistant Registrar (OS) to execute the sale deed, on behalf of the Judgment Debtors and in favour of the Decree holder or his nominee.8. The main contention of the JD2 to 10 is that the Decree holder obtained the decree behind their back without serving suit summons on them. The Judgment debtors came to know about the decree only when they received court notices in this execution proceedings. The Decree holder colluded with the 1st JD and played fraud, obtained the decree and filed this execution petition. The JD2 to 10 have taken steps to set aside the decree. Therefore, this execution petition shall be dismissed. 9.Point No.(i):It is the case of the petitioner that the judgment debtors refused to receive the balance sale consideration amount and the same was deposited in the court as per order of this court. The Decree was passed on 08.03.2010. The terms of the decree runs as follows:It is ordered and decreed as follows:1. That the plaintiff herein do on or before 08.04.2010 pay a sum of Rs.90,000/-(Ninety Thousand Only) being the balance sale consideration to the 1st defendant herein as per the sale consideration dated 12.12.2001 in respect of the property morefully setout in the schedule here under.2. That if the 1st defendant herein refuses to receive the amount. The plaintiff herein, shall be at liberty to deposit the said amount within a further period of one month into this court to the credit of this CS No.473/2002. https://www.mhc.tn.gov.in/judis
3. That in the event of failure of the defendants to execute the sale within time as mentioned in clause (1) supra the Assistant Registrar (OS) shall execute the sale deed in favour of the plaintiff herein.4. Admittedly, the petitioner has not deposited the balance sale consideration in time as per the Judgment and decree. The execution petitioner did not pay the amount on or before 8.4.2010 and did not deposit the same within a further period of one month as per the terms of the decree. It is stated by the decree holder that the judgment debtor refused to receive the money and hence he took out an application in A No.892/2022 to condone the delay o 3907 days in depositing money, which was ordered on 4.4.2022 and the order passed in A No.892/2022 runs as follows:It is ordered as follows:1. That the applicant/plaintiff herein be and is hereby directed to deposit a sum of Rs.90,000/-(Rupees Ninety Thousand Only) as cost to the credit of CS No.473/2002 on or before 25.4.2022.2. That such payment within time as mentioned in clause (1) supra the delay of 3907 days in depositing the amount of Rs.90,000/-(Rupees Ninety Thousand Only) to the credit of CS No.473 of 2002 be and is hereby condoned.3.That in default of paying the amount within time as mentioned above this application shall automatically stands dismissed, without any further reference to this Hon'ble Court.The counsel for decree holder submitted that he has complied with the conditional order https://www.mhc.tn.gov.in/judis in A.No.892/2022 subsequent to which the court made the following order:The earlier order dated 04.04.2022 has been complied by the learned counsel for the applicant/plaintiff.It is for the plaintiff to proceed further.10. Initially when this EP came up for hearing before my predecessor the said deposit of Rs.90,000/- (Rupees Ninety Thousand Only) deposited into the credit of CS No.473/2002 was treated as costs and then it was held that the balance sale amount was not paid within time to the judgment debtors by the decree holder and then by invoking section 28 of CPC and raising doubt as to whether the deposit of Rs.90,000/- (Rupees Ninety Thousand Only) is towards cost or balance sale consideration amount the EP was dismissed. As against the said order of dismissal the decree holder filed A.No.680/2025 before the Hon'ble High Court wherein the order dated 24.01.2025 passed by this court was set aside and the matter was remitted back to this court to adjudicate the issue of deposit is whether towards balance sale consideration or towards costs and pass appropriate order on that particular aspect and thereafter examine the counter filed by the defendants and examine the case of the decree holder and determine the execution petition in manner known to law. As per the order dated 4.4.2022 of the Hon'ble High Court in A No.892/2022 wherein decree holder was directed to deposit the sum of Rs.90,000/-(Rupees Ninety Thousand Only) as costs to the credit of CS No.473/2002 on or before 25.4.2022, subsequently to which the decree holder has complied with the said order and was directed to proceed further. Any deposit directed to be made into the credit of CS No.473/2022 cannot be considered as costs and it can only remain as a integral part of balance sale consideration owed under the decree. Hence this court is of considered opinion that the deposit of Rs.90,000/-(Rupees Ninety https://www.mhc.tn.gov.in/judis Thousand Only) made by the decree holder into the credit of CS No.473 of 2022 is to be treated as balance sale consideration and thereby the decree holder has complied with the terms of the decree in CS No.473 of 2002.11. Point No (ii):It is an admitted fact that the decree was ex-parte decree. The Judgment Debtors failed to contest the case before the trial court. The only contention of the judgment debtors 2 to 10 is that the decree holder obtained the decree behind their back without serving out summon on them and the same came to their notice only when they received notice in this execution petition and therefore the decree holder is not entitled for the prayer as the decree was obtained by playing fraud upon the court in collusion with the 1st judgment debtor. Further in the course of argument the counsel for judgment debtors 2 to 10 submitted that he has filed an application to set aside the decree in CS No.473/2002 with a petition to condone the delay in filing the set aside application which is pending before the registry and yet to be numbered.12. The learned counsel for the 1st Judgment Debtor submitted that he received the advance amount of Rs.14,10,000/- (Fourteen Lakhs and Ten Thousand Rupees Only) from the decree holder as a power of attorney holder for the judgment debtors 2 to 8 and has also paid the advance amount received by him to his principals i.e., the judgment debtors 2 to 8 herein and it is for them to execute the sale deed and therefore he has no role in this execution petition. From the counter averments and arguments submitted by the judgment debtors 2 to 8. It is seen that the above exparte decree was not set aside till date and no stay order was obtained from any court. Hence the grounds raised by the judgment debtors 2 to 10 before this court is liable to be rejected in this execution proceedings. Accordingly this court hold that the decree holder is entitled to execute the decree which was passed on 8.3.2010 in CS No.473/2002. https://www.mhc.tn.gov.in/judis Judgment debtors failed to set aside the decree as well as failed to challenge the decree by way of set aside the decree or appeal within time. Though the decree holder got the decree in his favour, he was not able to enjoy the fruits of the decree. Therefore this court holds that there are no merits in the counter and hence this court of the view that the decree holder is entitled for the prayer sought for in this execution petition. 13. Accordingly this execution petition is allowed. Draft sale deed by 24.09.2025.MASTER
EP No.88 of 2023MASTER20.08.20251. This EP is filed by the petitioner/decree holder U/O 21 R 34 of CPC to direct the Assistant Registrar (OS) to execute the sale deed on behalf of the Judgment Debtor's and in favour of the Decree Holder or his nominee.2. The averments of the petitioner/decree holder is that he had filed the suit in CS No.473/2002 seeking a direction against the defendants therein to execute a sale deed in favour of the plaintiff or his nominee on receipt of balance sale consideration of Rs.90,000/-(Rupees Ninety Thousand Only) in respect to the property described in the EP schedule. The suit was decreed on 08.03.2010 in favour of the petitioner. Thereafter the petitioner had filed an application to condone the delay of 3907 days in depositing the sale consideration of Rs.90,000/-(Rupees Ninety Thousand Only) and the same was allowed in A No.892/2021 on 04.04.2022 with a direction to deposit the sale consideration of Rs.90,000/- on or before 25.04.2022. The said conditional order was complied by the petitioner and immediately this EP came to be filed.3. 1st Respondent/1st Judgment Debtor has filed his counter stating that he was the power of attorney holder for Judgment debtors 2 to 8 and in that capacity he had acted upon and executed a sale agreement by fixing sale price in respect of schedule property and received the advance amount of Rs.14,10,000/- from the petitioner and paid it to the Judgment Debtors 2 to 8. Further stated the petitioner has filed this EP to execute the exparte decree dated 08.03.2010 obtained in CS No.473/2002 and now that he does not have any role in respect of the property and the execution can be made only against the JD2 to 8 who are the original owners of the property and since he had already paid the https://www.mhc.tn.gov.in/judis advance amount to the Judgment Debtor 2 to 8. Hence the petition is to be dismissed against him. 4. The judgment debtor 2 to 8 has filed their counter stating that the petitioner has obtained the decree in CS No.473/2002 behind their back and it is an exparte decree. Further they state that they came to know about the exparte decree only after receipt of court notice in the above EP and that the 1st Judgment debtor had fraudulently created the false documents with ill motive and thereafter failed to contest the suit only with an intention to get an adverse order in respect of the EP schedule property. Hence this EP is to be dismissed.5. Judgment debtors 9 and 10 has filed their counter reiterating the counter of Judgment debtor 2 to 8 by stating that the exparte decree in CS No.473/2002 was obtained by petitioner/decree holder in collusion with JD1 behind their back without any notice to them in the suit.6. Point for consideration:(i) Whether the amount of Rs.90,000/- deposited by the Decree holder subsequent to the order in A.No.892 of 2022 dated is towards balance sale consideration or towards costs?(ii) Whether the decree holder is entitled to an order of execution of sale deed of the schedule mentioned property in his favour by the Assistant Registrar (OS) on behalf of the Judgment Debtors 1 to 10?7. Heard both sides, perused the records and the written submissions filed by the Petitioner. The decree holder had filed a suit directing the defendants to execute a sale deed in favour of the plaintiff or his nominee on receipt of balance sale consideration of Rs.90,000/- (Rupees Ninety Thousand Only) with respect to the https://www.mhc.tn.gov.in/judis schedule mentioned property and the suit was decreed on 08.03.2010. Even after the decree, the Judgment debtors had not executed the sale deed in favour of the plaintiff/Decree holder till date. Hence, this Execution Petition is filed to direct the Assistant Registrar (OS) to execute the sale deed, on behalf of the Judgment Debtors and in favour of the Decree holder or his nominee.8. The main contention of the JD2 to 10 is that the Decree holder obtained the decree behind their back without serving suit summons on them. The Judgment debtors came to know about the decree only when they received court notices in this execution proceedings. The Decree holder colluded with the 1st JD and played fraud, obtained the decree and filed this execution petition. The JD2 to 10 have taken steps to set aside the decree. Therefore, this execution petition shall be dismissed. 9.Point No.(i):It is the case of the petitioner that the judgment debtors refused to receive the balance sale consideration amount and the same was deposited in the court as per order of this court. The Decree was passed on 08.03.2010. The terms of the decree runs as follows:It is ordered and decreed as follows:1. That the plaintiff herein do on or before 08.04.2010 pay a sum of Rs.90,000/-(Ninety Thousand Only) being the balance sale consideration to the 1st defendant herein as per the sale consideration dated 12.12.2001 in respect of the property morefully setout in the schedule here under.2. That if the 1st defendant herein refuses to receive the amount. The plaintiff herein, shall be at liberty to deposit the said amount within a further period of one month into this court to the credit of this CS No.473/2002. https://www.mhc.tn.gov.in/judis
3. That in the event of failure of the defendants to execute the sale within time as mentioned in clause (1) supra the Assistant Registrar (OS) shall execute the sale deed in favour of the plaintiff herein.4. Admittedly, the petitioner has not deposited the balance sale consideration in time as per the Judgment and decree. The execution petitioner did not pay the amount on or before 8.4.2010 and did not deposit the same within a further period of one month as per the terms of the decree. It is stated by the decree holder that the judgment debtor refused to receive the money and hence he took out an application in A No.892/2022 to condone the delay o 3907 days in depositing money, which was ordered on 4.4.2022 and the order passed in A No.892/2022 runs as follows:It is ordered as follows:1. That the applicant/plaintiff herein be and is hereby directed to deposit a sum of Rs.90,000/-(Rupees Ninety Thousand Only) as cost to the credit of CS No.473/2002 on or before 25.4.2022.2. That such payment within time as mentioned in clause (1) supra the delay of 3907 days in depositing the amount of Rs.90,000/-(Rupees Ninety Thousand Only) to the credit of CS No.473 of 2002 be and is hereby condoned.3.That in default of paying the amount within time as mentioned above this application shall automatically stands dismissed, without any further reference to this Hon'ble Court.The counsel for decree holder submitted that he has complied with the conditional order https://www.mhc.tn.gov.in/judis in A.No.892/2022 subsequent to which the court made the following order:The earlier order dated 04.04.2022 has been complied by the learned counsel for the applicant/plaintiff.It is for the plaintiff to proceed further.10. Initially when this EP came up for hearing before my predecessor the said deposit of Rs.90,000/- (Rupees Ninety Thousand Only) deposited into the credit of CS No.473/2002 was treated as costs and then it was held that the balance sale amount was not paid within time to the judgment debtors by the decree holder and then by invoking section 28 of CPC and raising doubt as to whether the deposit of Rs.90,000/- (Rupees Ninety Thousand Only) is towards cost or balance sale consideration amount the EP was dismissed. As against the said order of dismissal the decree holder filed A.No.680/2025 before the Hon'ble High Court wherein the order dated 24.01.2025 passed by this court was set aside and the matter was remitted back to this court to adjudicate the issue of deposit is whether towards balance sale consideration or towards costs and pass appropriate order on that particular aspect and thereafter examine the counter filed by the defendants and examine the case of the decree holder and determine the execution petition in manner known to law. As per the order dated 4.4.2022 of the Hon'ble High Court in A No.892/2022 wherein decree holder was directed to deposit the sum of Rs.90,000/-(Rupees Ninety Thousand Only) as costs to the credit of CS No.473/2002 on or before 25.4.2022, subsequently to which the decree holder has complied with the said order and was directed to proceed further. Any deposit directed to be made into the credit of CS No.473/2022 cannot be considered as costs and it can only remain as a integral part of balance sale consideration owed under the decree. Hence this court is of considered opinion that the deposit of Rs.90,000/-(Rupees Ninety https://www.mhc.tn.gov.in/judis Thousand Only) made by the decree holder into the credit of CS No.473 of 2022 is to be treated as balance sale consideration and thereby the decree holder has complied with the terms of the decree in CS No.473 of 2002.11. Point No (ii):It is an admitted fact that the decree was ex-parte decree. The Judgment Debtors failed to contest the case before the trial court. The only contention of the judgment debtors 2 to 10 is that the decree holder obtained the decree behind their back without serving out summon on them and the same came to their notice only when they received notice in this execution petition and therefore the decree holder is not entitled for the prayer as the decree was obtained by playing fraud upon the court in collusion with the 1st judgment debtor. Further in the course of argument the counsel for judgment debtors 2 to 10 submitted that he has filed an application to set aside the decree in CS No.473/2002 with a petition to condone the delay in filing the set aside application which is pending before the registry and yet to be numbered.12. The learned counsel for the 1st Judgment Debtor submitted that he received the advance amount of Rs.14,10,000/- (Fourteen Lakhs and Ten Thousand Rupees Only) from the decree holder as a power of attorney holder for the judgment debtors 2 to 8 and has also paid the advance amount received by him to his principals i.e., the judgment debtors 2 to 8 herein and it is for them to execute the sale deed and therefore he has no role in this execution petition. From the counter averments and arguments submitted by the judgment debtors 2 to 8. It is seen that the above exparte decree was not set aside till date and no stay order was obtained from any court. Hence the grounds raised by the judgment debtors 2 to 10 before this court is liable to be rejected in this execution proceedings. Accordingly this court hold that the decree holder is entitled to execute the decree which was passed on 8.3.2010 in CS No.473/2002. https://www.mhc.tn.gov.in/judis Judgment debtors failed to set aside the decree as well as failed to challenge the decree by way of set aside the decree or appeal within time. Though the decree holder got the decree in his favour, he was not able to enjoy the fruits of the decree. Therefore this court holds that there are no merits in the counter and hence this court of the view that the decree holder is entitled for the prayer sought for in this execution petition. 13. Accordingly this execution petition is allowed. Draft sale deed by 24.09.2025.MASTER