A.HAji Mohammed v. M.Veeratteswaran

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10.12.2007 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)No. 1155 of 2004and C.M.P.Nos.8749 and 14174 of 2004 A.HAji Mohammed .. Petitioner(Judgment Debtor) vs. M.Veeratteswaran .. Respondent (Decree Holder) PRAYER:Civil Revision Petition filed against the fair and decretalorder dated 13.01.2004 made in E.P.No.66 of 2000 in O.S.No.144 of1988 on the file of the Principal District Munsif, Karaikal. For Petitioner : No Appearance For Respondent : Mr.Kalpa Reddy ****** O R D E RThe Civil Revision Petitioner is the defendant in O.S.No.144 of1998 on the file of the Principal District Munsif, Karaikal. In thesuit, O.S.No.144 of 1988, a decree was passed on 09.09.1988 afterfull trial.2.The Civil Revision Petitioner/Defendant/JD has not preferredany appeal against the judgment and decree dated 09.09.1988 passedin O.S.No.144 of 1988 for a sum of Rs.15,000/- and the rate ofinterest being 12% per annum. The Civil RevisionPetitioner/Defendant/JD has executed the said pronote.3.It appears that in C.M.P.No.8749 of 2004 in C.R.P. NPDNo.1155 of 2004, this Court has passed order on 19.05.2004 'orderinginterim stay' on condition that the petitioner deposits a sum ofRs.10,150/- with subsequent interest in E.P.No.66 of 2000 inO.S.No.144 of 1988 on the file of the learned Principal DistrictMunsif, Karaikal and that the said petition was so ordered.4.Today, when the matter was taken up, there is norepresentation on the side of the petitioner. However, Mr.KalpaReddy the learned counsel for the respondent has argued the matterbefore this Court.5.According to the learned counsel for theRespondent/Plaintiff/Decree holder, earlier E.P.No.58 of 1989 wasfiled by the respondent/Decree holder and the said E.P. was ordered https://hcservices.ecourts.gov.in/hcservices/ by the Court below directing the attachment of the revisionpetitioner's properties and keeping the same in the custody of thesureties. Thereafter, E.A.No.55 of 1992 in E.P.No.58 of 1999 wasfiled by the respondent/decree holder and it was directed by theCourt below that the sureties are to pay a value of the attachedgoods as compensation amounted to Rs.13,400/- on 04.07.1994. It isthe case of the respondent/Decree holder that neither the CivilRevision petitioner/JD nor the sureties paid the said sum ofRs.13,400/- with subsequent interest and later, E.P.No.66 of 2000was filed by the respondent/Decree holder against the Civil RevisionPetitioner/Defendant/JD for attaching the movables for amount ofRs.27,910/- being the principal of interest after adjusting the partpayment of Rs.4,000/- paid by the Revision Petitioner/Defendant/JD.6.According to the learned counsel for the Respondent/Decreeholder, the Civil Revision Petitioner/Defendant/JD took a stand inE.P.No.66 of 2000 that he paid a sum of Rs.6,000/- in full and finalsettlement and for the balance amount, the respondent/decree holdershould proceed against the sureties and not against the CivilRevision Petitioner.7.The learned Principal District Munsif, Karaikal has passedorders in E.P.No.66 of 2000 in O.S.No.144 of 1988 on 13.01.2004inter alia observing that 'the Civil RevisionPetitioner/Defendant/JD who was protracting the execution came withthe defence of part payment without any receipt and the CivilRevision Petitioner/Defendant/JD paid only a sum of Rs.4,000/- tothe respondent/decree holder which was duly acknowledged by thecounsel and that there was no evidence available on record toindicate that the rest of the decree amount was paid by the RevisionPetitioner/JD and that the JD was directed to pay a sum ofRs.27,910/- with 6% subsequent interest to the decree holder afterdeducting the sum of Rs.4,000/- on or before 05.02.2004 failingwhich ordering attachment of the movables mentioned in the scheduleof the Execution Petition.8.It is the case of the Civil Revision Petitioner, as seen fromthe grounds said out in the Revision Petition that there was anearlier attachment of movables of the Civil Revision Petitioner/JDand that on 01.07.1994, the Executing Court passed order inE.A.No.52 of 1998 to the effect that the respondent/decree holderwas entitled to get compensation of Rs.13,400/- from the suretiesand that the order has become final and the same will bind theparties. It is also the further case of the Civil RevisionPetitioner that the Executing Court failed to take intoconsideration that the decree was for Rs.16,700/- in 1988 with 6%interest and that the movables were sold out as early as in 1994 forRs.13,400/- and the sureties were entrusted with the funds ofRs.13,400/- and if so calculated the balance decree amount payablein the year 2000 would have been almost nil, in as much as the sumof Rs.4,000/- was paid by the Revision Petitioner/JD as early as on https://hcservices.ecourts.gov.in/hcservices/

13.03.1989 and therefore, the present order directing the CivilRevision Petitioner to pay a sum of Rs.27,910/- (-) Rs.4,000/- isillegal and it is clear case of illegal exercise of jurisdiction.9.It is significant to note refer to E.P.No.66 of 2000 filed bythe Respondent/Petitioner/Decree holder at column No.10, it isspecifically mentioned that earlier E.P. amount was Rs.20,601.50/-and the interest of Rs.1,144/- being the interest relating to theperiod from 10.03.1989 to 17.04.1990 for Rs.17,600/- and deducting asum of Rs.2,000/- a part payment made on 17.04.1990, the balancewould come to Rs.19,745.50/- and a sum of Rs.616 /- being theinterest at 6% per annum in regard to the period from 17.04.1990 to20.11.1990 for Rs.17,600/- and giving credit to the part payment ofRs.2,000/- made on 21.11.1990 adding interest at 6% per annum from21.11.1990 to 08...99 for Rs.17,600/- a sum of Rs.9548/-, it comesto Rs.27,909.50/- and adding the stamp on the present E.P., 0.75paise and the balance payable is rounded up to Rs.27,910/-.10.The learned counsel for the Respondent/Decree holder informsthis Court that the sureties have not paid Rs.13,400/- to the totalamount due to be paid to the civil Revision Petitioner. 11.According to the learned counsel for the respondent/decreeholder, even after giving credit to the payment of Rs.4,000/- paidearlier by the Revision Petitioner/JD and also taking note of thesum of Rs.10,150/- with subsequent interest yet there is a balanceof Rs.13,760/- which has not been paid by the Civil RevisionPetitioner and therefore, this sum is due from the Civil RevisionPetitioner to the respondent/decree holder.12.It cannot be gain said that there is no impediment in lawfor the respondent/Plaintiff to proceed against the RevisionPetitioner/JD /Defendant in regard to the due amount under thedecree and the Civil Revision Petitioner cannot escape his liabilityand he cannot wriggle out of the predicament that he is in.Moreover, the liability of the Civil RevisionPetitioner/Defendant/JD will extinguish only when the full amountdue under judgment and decree is completely satisfied.13.In that view of the matter, the Civil Revision Petitionfails and the same is hereby dismissed to promote the substantialcause of justice. The order of the trial Court in E.P.No.66 of 2000in O.S.No.144 of 1988 dated 13.01.2004 is hereby confirmed for thereasons assigned by this Court in the present revision. However,the parties are directed to bear their own costs in the facts andcircumstances of the case. 14.The learned counsel for the respondent/Decreeholder/Plaintiff represents that the total due amount under thedecree comes to Rs.27,910/- and as per the order of this Courtpassed in C.M.P.No.8749 of 2004 in C.R.P.NPD No.1155 of 2004, a sum https://hcservices.ecourts.gov.in/hcservices/ of Rs.10,150/- with subsequent interest in E.P.No.66 of 2000 inO.S.No.144 of 1988 on the file of the learned District Munsif,Karaikal was directed to be deposited by the Civil RevisionPetitioner/Defendant/JD and already a sum of Rs.4,000/- was paid bythe Revision Petitioner and interest at 6% per annum comes toRs.825.60/- and the total period is 7 years and 9 months and givingcredit to a sum of Rs.13,760/-, the total amount which is now due tobe paid by the Civil Revision Petitioner/Defendant/JD includinginterest up to date comes to Rs.20,158.40/-.14.It transpires that the Civil RevisionPetitioner/Defendant/JD has deposited a sum of Rs.10,323/- on07.09.2004 in S.B.I.,Karaikal as per the direction issued by thisCourt in C.M.P.No.8749 of 2004 in C.R.P. NPD No.1155 of 2004 dated19.05.2004 and that he has already paid a sum of Rs.4,000/- asadmitted by the respondent/Decree holder/Plaintiff and thus, theCivil Revision Petitioner has paid/deposited a sum of Rs.14,323/- inall and he has to pay the remaining balance amount with interest at6% per annum.15.In that view of the matter, the Civil Revision Petitioner isdirected to pay the balance amount due after deducting the total sumof Rs.14,323/- along with interest at 6% per annum till date ofpassing of this order in revision to the credit of the E.P.No.66 of2000 in O.S.No.144 of 1988 on the file of the Principal DistrictMunsif, Karaikal within two weeks from the date of receipt of a copyof this order.16.It is open to the decree holder to receive the balanceamount with interest up to date (including the sum of Rs.10,323/- sodeposited on 07.09.2004 in S.B.I. Karaikal) from the trial Courtafter moving necessary interlocutory application under the CivilRules of Practice for payment out in the manner known to law. Theconnected miscellaneous petitions are closed.VriSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Principal District Munsif,Karaikal.2. The Section Officer, VR Section, High Court, Madras.1 cc to Mr.S.Udayakumar, Advocate, SR.730311 cc to Mr.Venkataseshan, Advocate, SR.72746bk (co)dv/4.1.C.R.P. NPD 1155 of 2004