NAGASAMY Vs. E P K MANI

JUDGEMENT

(1.) The Decree-holder, who obtained a Decree for Specific Performance against the Respondents 1 & 2 herein in O.S. No. 368 of 1998 on the file of Sub-Court, Sankari, is the Petitioner in the present Revision Petition. The said Suit was filed by the Revision Petitioner against the Respondents herein on the basis of a registered Sale Agreement dated 17.9.1998 executed by the Second Respondent herein, who figured as the First Defendant in the above said Suit. The other admitted fact is that the First Respondent herein (Second Defendant in the Suit) purchased the Suit property subsequent to the above said Sale Agreement dated 17.9.1998 and before the filing of the above said Suit for Specific Performance. The following dates will make the picture clear:

(2.) After the passing of the Decree, the Revision Petitioner chose to file R.E.P. No. 92 of 2004 for the execution of the Decree. The said R.E.P came to be filed on 6.9.2004. The First Respondent could have atleast preferred an Application before the Trial Court to set aside the ex parte Decree immediately after receiving Notice in the Execution Petition, of course, along with an Application to condone the delay in filing the same. The First Respondent, instead of doing it, chose to file an Application on the execution side as R.E.A. No. 302 of 2005 in R.E.P. No. 92 of 2004 on 13.10.2005 under Section 47 of the Code of Civil Procedure, contending that the Decree was inexecutable because it was obtained in suppression of a pre-suit arrangement among the First Respondent, Second Respondent and all the creditors of the Second Respondent including the Revision Petitioner, pursuant to which alone the First Respondent got a Sale Deed in his favour on 29.10.1998.

(3.) Of course, the Executing Court passed an Order on 22.1.2007 rejecting the Application filed on the execution side under Section 47, C.P.C. opining that the said Application was not maintainable. As against the said Order, the First Respondent approached this Court by filing a Revision in C.R.P (NPD) No. 2447 of 2007. A learned Judge of this Court, after hearing, held that an Application filed under Section 47, C.P.C. could not be dismissed in limine without affording an opportunity to the parties to raise their pleas and leading evidence. Consequently, the learned Judge of the Executing Court was directed to take the R.E.A again on file, give opportunity to the parties to lead evidence and then decide the same as if it were a Suit.