S.S.M.Habeeb Thambi Maraikayar v. S.S.M.Noor Mohamed (Died)

ORDER This petition has been filed to quash the order passed by the learned Subordinate Judge, Aranthangi in E.A.No.48 of 2019 in E.P.No. 55 of 2017 in O.S.No.39 of 1990 dated 21.03.2020.

2.This petition has been filed to set aside the order passed by the learned Subordinate Judge, Aranthangi, in E.A.No.48 of 2019 in E.P.No. 55 of 2017 in O.S.No.39 of 1990 dated 21.03.2020.

3.The petitioners are the defendants in O.S.No.39 of 1990. The suit was filed for performance of agreement dated 20.02.1989. The suit was decreed by the Trial Court by its judgment and decree dated

31.01.1992. Aggrieved by the same, the petitioners have also filed A.S.No.246 of 1992. The appeal suit was also dismissed by the Appellate Court by its judgment and decree dated 01.07.2008. No further appeal was preferred by the petitioners herein.

4.By the impugned order dated 21.03.2020, in E.A.No.55 of 2017 in O.S.No.39 of 1990, the learned Subordinate Judge, Aranthangi, has dismissed the above application filed by the petitioners under Section 47 of CPC with the following observation:- "7.,ujug;g[

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5.The specific case of the of the petitioners is that the execution proceedings initiated by the respondents in the year 2016 before the Sub Court, Pudukottai in EP.No.73 of 2016. Later, it was transferred to the Sub Court, Aranthangi, and renumbered as E.P.No.55 of 2017. It was clearly barred by limitation in terms of Article 136 of Limitation Act.

6.It is submitted that in the absence of stay by the Appellate Court in A.S.No.246 of 1992, question of saving of limitation did not arise. Therefore, execution proceeding if any, ought to have filed from 12 years from the date of the judgment and decree of the Trial Court on

31.01.1992. It is submitted that the Trial Court has committed error in dismissing the application filed by the petitioners in E.A.No.48 of 2018.

7.In support of the present case, the learned counsel for the petitioners submits that as per the impugned order, it is categorically recording the fact that there was no stay obtained by the petitioners in A.S.No.246 of 1992. It is submitted that the Trial Court has misconstrued the decision of the Hon'ble Supreme Court in Shanthi Vs. Vishwanathan T.D and Others reported in 2018 (4) TLNJ 412 (Civil). Specifically, it is submitted that in the said decision, the Court was concerned with the case where the stay operating in favour of the judgment debtor during the pendency of the appeals and accordingly, the judgment debtor continued in the possession of the property. Whereas, in the present case, no stay was operating against the respondents and therefore, nothing precluded the respondents to initiate proceedings under Section 136 of the limitation Act, 1963. The learned counsel also placed reliance a decision of this Court in Tamil Nadu Housing Board Vs. Jayanthi reported in 2021 (3) MWN (Civil) 421. Wherein this Court observed as follows:- "25.He also relied upon the judgment in the case of Moman V.Munshi and others, 2002 SCC Online Raj 160, in which the Hon'ble Supreme Court of India held as follows: "10.In RatanSingh V. Vijay Singh and others, 2001 (1) CTC 683 (SC) : AIR 2001 SC 279, the Hon'ble Supreme Court considered a large number of judgments of various High Courts in a case where the Second Appeal was dismissed as being time-barred, but considering the provisions of the Limitation Act, observed as under: "Filing of an Appeal would not affect the enforceability of a Decree unless the Appellate Court stayed its operation. But, if the Appeal results in Decree, that would supersede the Decree passed by the Lower Court and it is the Appellate Court's Decree, which becomes enforceable .. As no Decree was passed by the High Court in Second Appeal, the Decree of the First Appellate Court remains unaffected and the enforceability once commences remains undisturbed for a period of twelve years therefrom. The execution process initiated by the Appeal long after expiry of twelve years from 1.8.1973 is, thus, irretrievably barred."

11.Thus, in view of the above, it cab be summarised that by virtue of the provisions of Order 41, Rule 5 of the Code, merely filing of an Appeal would not amount to stay or mere institution of the Appeal does not prevent the Decree-holder to execute the Decree and unless the Appellate Court puts and embargo, the Decree is executable. Even if the Appellate Court reverses the Decree in view of the provisions of Section 144 of the Code, there can be restitution without any hindrance and if the Appellate Court had stayed the execution proceedings, the period of stay is to be computed and excluded from the period of limitation of execution of the Decree." The Hon'ble Supreme Court of India held that filing of the Appeal would not affect the enforceability of a Decree unless the Appellate Court stayed its operation. If the Appeal results in Decree, that would supersede the Decree passed by the Lower Court and it is the Appellate Court's Decree, which becomes enforceable. When the Appellate order does not amount to a Decree, there would be no supersession and hence the Lower Court's Decree continues to be enforceable.

26.In the case on hand, admittedly the First Appellate Court stayed the Decree passed by the Trial Court and finally dismissed the Appeal Suit by the Judgment and decree, dated 12.10.2004. Thereafter, the petitioner filed Second Appeal before this and Special Leave Petition before the Hon'ble Supreme Court of India and both were dismissed in its limini that too, in the condone the delay Petition itself. Therefore, no Decree passed by this Court or by the Hon'ble Supreme Court of India as such, the Decree passed by the First Appellate Court continuous to be enforceable and it remains unaffected and undisturbed by the Appellate Courts. Therefore, the Respondents ought to have filed the Execution Petition within a period of three years from the date of Judgment passed by the First Appellate Court viz., on or before 12.10.2007. Therefore, the above Judgments are squarely applicable to the case on hand and the Judgment cited by the learned Counsel appearing for the Respondents is not helpful to the case on hand and the Execution Petition itself is barred by limitation."

8.Per contra, the learned counsel for the respondents on the other hand would submit that the impugned order of the Trial Court is well reasoned and requires no interference. He submits that there was merger of the original decree passed on 30.01.1992 with the decree passed by the Appellate Court on 01.07.2018 in A.S.No.246 of 1992 and therefore, there is saving of limitation and therefore, the execution proceedings initiated by the respondents in E.P.No.73 of 2016 which was later re-numbered as E.P.No.55 of 2017 was well within the limitation under Article 136 of the Limitation Act.

9.I have considered the argument advanced by the learned counsel for the petitioner and the learned counsel for the respondents 2 and 9.

10.The impugned order rejecting the application filed by the petitioners on the ground of limitation cannot be sustained. The Execution Petition filed by the respondents was clearly time barred under Article 136 of the Limitation Act. The Trial Court ought to have considered the same as there were no stay operating against the respondents to initiate the execution proceedings in time.

11.Therefore, I am inclined to allow this Civil Revision Petition. Accordingly, the impugned order passed by the learned Subordinate Judge, Aranthangi, in E.A.No.48 of 2019 in E.P.No.55 of 2017 in O.S.No.39 of 1990 is set aside and accordingly, E.A.No.48 of 2019 stands allowed.

12.This civil revision petition stands allowed. No costs. Consequently, the connected miscellaneous petition is closed.

13.04.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No dss To

1.The Subordinate Judge, Aranthangi.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

dss and CMP(MD)No.2096 of 2021

13.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.04.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and CMP(MD)No.2096 of 2021 S.S.M.Habeeb Thambi Maraikayar Ummal Rathinammal (Died) ...Revision Petitioners/Petitioners/ Respondents/Defendants Vs. S.S.M.Noor Mohamed (Died) Mohamed Aliyar (Died) 1.Naina Mohamed 2.Jamal Mohideen 3.Ayisha Ammal 4.Barakath Ammal 5.Amina Ammal 6.Sulaika Ammal 7.Mahariba 8.Bathurunisha 9.Kaleel Rahman 10.Rashitha 11.Sheik Dawood 12.Musthoon 13.Rahmath Nisha 14.Barveen Beevi ...Respondents/Respondents/ Petitioners/Plaintiffs PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of India, to call for the records pertaining to the order passed by the learned Subordinate Judge, Aranthangi in E.A.No.48 of 2019 in E.P.No.55 of 2017 in O.S.No.39 of 1990 dated 21.03.2020 and set aside the same. For Petitioner : Mr.N.Balakrishnan For R2 & R9 : Mr.R.Paranjothi For R1, 3 to 8, 10 to 14: No Appearance