SARAVANA THEATRE Vs. MOOGAMBIGAI FINANCIERS, GUDIYATTAM

JUDGEMENT

(1.) THOUGH the third respondent has been served with private notice and his name has been printed in the cause list, there is no representation for the third respondent. None appears on behalf of the third respondent. The other respondents are represented by counsel. Submissions made by the learned counsel appearing on both sides are heard.

(2.) THE revision petitioner herein is the judgment debtor in O.S.No.183 of 1999 on the file of the Sub Court, Gudiyatham. The said suit, for recovery of money, was decreed on 29.1.2002. E.P.No.16 of 2003 was filed by the decree holder viz., the first respondent herein seeking attachment of the properties of the revision petitioners for realisation of the decreetal amount. The properties were attached and sold in execution proceedings long back in the year 2006 itself. Thereafter, the revision petitioner filed an unnumbered execution application of the year 2007 in E.P.No.16 of 2003 in O.S.No.183 of 1999 for setting aside the sale on the ground of irregularities. The said application was rejected by the Subordinate Judge by order dated 24.1.2007. As against the said order, the revision petitioners preferred appeal in C.M.A.No.4 of 2007 on the file of the Principal District Judge, Vellore. The learned Principal District Judge, Vellore allowed the appeal by order dated 29.12.2009 and directed the learned Subordinate Judge, Gudiyatham to restore the E.A. on file and dispose of the same in accordance with law. Thereafter, perhaps, not in full compliance with the direction issued by the learned Principal District Judge, without numbering the execution application and keeping it as an unnumbered E.A., the learned Subordinate Judge restored the same on file and directed issuance of notice. Since, on the subsequent hearing dates, batta for service of notice on the respondents was not paid by the revision petitioners herein, the said E.A. was dismissed for non -prosecution by order dated 10.11.2010. Instead of seeking the order to be set aside and seeking restoration of the E.A., the revision petitioners chose to prefer a complaint to the learned Principal District Judge. Thereafter, the learned Principal District Judge seems to have issued some administrative directions based on which the learned Subordinate Judge, Gudiyatham chose to pass an order as if the E.A., which was dismissed for default on 10.11.2010, was, suo motu, taken up for further hearing. Thereafter, without passing any order in the said E.A., orders were passed in the connected execution applications, as if the said E.A. was pending. In such circumstances, the revision petitioner approached this court invoking Article 227 of the Constitution of India seeking a direction for the disposal of the above said unnumbered E.A. with a direction to number the same and dispose of the same within a time to be fixed by this court.

(3.) PER contra, it is contended on behalf of the contesting respondent that once an order dismissing the execution application for default came to be passed, without the said order being set aside adopting the procedure contemplated for the same and without the said order being set aside in an appeal or revision by the appellate or revisional court, the executing court could not have taken up the matter for further enquiry and that so long as the said order of dismissal for default passed on 10.11.2010 remains in tact, the E.A. should be construed to be one not pending. It is the further contention raised on behalf of the contesting respondent that if at all the revision petitioners are aggrieved by the dismissal of the E.A. without giving them an opportunity, the remedy open to them is either to seek the order of dismissal set aside or to file an appeal challenging the order or file a revision challenging the said order and that without doing it, the revision petitioners have chosen to file the present revision invoking Article 226 of the Constitution of India on the erroneous premises that the E.A. is still legally pending.