RADHAKRISHNAN Vs. VINAYAKA CHITS

JUDGEMENT

(1.) THIS civil revision petition is directed against the order in E.A.No.133 of 1997 in E.P.No.161 of 1994 in Chit Case No.14 of 1993, dated 30.11.1999 on the file of the Subordinate Judge's Court, Thanjavur.

(2.) THE facts leading to the filing of the civil revision petition are, the first respondent in the civil revision petition is carrying on chit business and the petitioner has taken a chit for a sum of Rs.45,700. THE petitioner did not pay the chit amount, which led the first respondent herein to file a petition for arbitration before the Joint Sub Registrar-I, (Chit Arbitrator), Thanjavur claiming the chit arrears of Rs.30,000. THE petitioner herein did not appear before the Arbitrator and an ex parte decree was passed by the Arbitrator on 7.12.1993. THE first respondent herein filed E.P.No.161 of 1994 in Chit Case No.14 of 1993 before the learned Subordinate Judge, Thanjavur, for execution of the award obtained by it for a sum of Rs.30,000 with interest and costs. THEre was also an application for attachement of the property of the petitioner, and in that application, the property was attached ex parte by an order dated 24.11.1995. THE petitioner herein field I.A.No.276 of 1995 to set aside the ex parte order of attachment dated 24.11.1995. Since the first respondent herein was not present on 7.6.1996, the learned Subordinate Judge, by order dated 7.6.1996, allowed the application filed by the petitioner. THEreafter, the first respondent proceeded with the sale of the suit property and the sale proclamation was settled on 1.8.1996. THEreafter the petitioner filed a petition to dismiss the execution petition on the ground that the settlement of sale proclamation was made on 1.8.1996 fixing the date of hearing as 9.8.1996 and for filing the sale papers, the case was adjourned to 29.8.1996 and then to 19.9.1996 and 27.9.1996. THE petitioner has also stated that the attachement of property was not in force on the date when the sale proclamation was settled, and hence, the execution petition should be dismissed.

(3.) I have carefully considered the submissions of the learned counsel for the petitioner and the learned counsel for the first respondent. The facts are not in dispute. There was an ex parte arbitration award dated 7.12.1993 against the petitioner herein and two others for a sum of Rs.30,000 with interest and costs. It is not brought to the attention of this Court that the award has been set aside. The first respondent herein has filed a petition underO.21, Rule11(2) of the Code of Civil Procedure for execution of the award, to realise a sum of Rs.35,385.40 being the award amount with interest and costs and to attach the immovable property belonging to the civil revision petitioner and to bring the property for sale in Court auction and to realise the award amount underO.21, Rules 22, Rules 54 and Rules 64 of the Code of Civil Procedure. There was an earlier ex parte order of attachment of the property in question, dated 24.11.1995 and the petitioner herein filed E.A.No.276 of 1995 in Chit Case No.14 of 1993 to set aside the order dated 24.1.1995. Learned Subordinate Judge, by order dated 7.6.1996, allowed the application, E.A.No.276 of 1995. However, the Executing Court, viz., learned Subordinate Judge, Thanjavour proceeded with the execution proceedings in E.P.No.161 of 1994, and as seen from the petition filed under Sec.47 of the Code of Civil Procedure, the matter was adjourned to 27.6.1996 and it was further adjourned to 12.7.1996. The matter was again adjourned to 1.8.1996. On 1.8.1996, learned Subordinate Judge, Thanjavour settled the proclamation of sale and the matter was adjourned to 9.8.1996, and further adjourned to 19.9.1996 and then to 27.9.1996. The civil revision petitioner thereafter filed the petition under Sec.47 of the Code of Civil Procedure on 3.10.1996 to dismiss the execution petition on the ground that the attachment of the property was lifted by the learned Subordinate Judge by order dated 7.6.1996 and without the attachment of the property in question, the property could not be brought for sale. The first respondent herein has filed a memo of objection stating that the property was attached during the process of Court and even though the ex parte order was set aside, the attachment was not raised, and hence, learned Subordinate Judge was right in settling the sale proclamation.