SREYAS SRIPAL Vs. UPASANA FINANCE LTD

JUDGEMENT

(1.) ADMIT. Learned counsel appearing for the respondents waives service. By consent, the appeals are taken up for hearing.

(2.) THESE appeals are directed against a common order passed by the learned single Judge dismissing Application Nos. 2284, 2285, 2286 and 2287 of 2006 in Execution Petitions Nos. 193 and 194 of 2006. The facts giving rise to these appeals may be briefly stated as follows: The appellants are the judgment debtors/original defendant Nos. 2 and 3. The respondent/decree holder filed a suit in C. S. No. 704 of 1998 and a decree was passed by this Court on 30. 01. 1999 in terms of a memorandum of Compromise signed by all the parties. Under the compromise, defendant Nos. 1 to 3, 5 and 6 were to pay to the plaintiff a sum of Rs. 95,37, 103/- with further interest @ 33% per annum at monthly rests from the date of compromise i. e. , 04. 01. 1999 till the date of payment. Further, the defendants were permitted to pay the amounts decreed along with interest @33% at monthly rests in 78 weekly installments commencing from 08. 01. 1999 and ending 30. 06. 2000 and if there being any delay in payment of the installments, it shall carry interest @ 36% per annum at monthly rests from the due date till the date of payment of the installments. Further if the defendants fail to pay any three consecutive installments on the due dates, the plaintiff shall be at liberty to execute the decree for the entire amount and that would become payable irrespective of the period fixed for the payment of the decree amount. As default was committed, the decree holder filed Execution Petitions Nos. 193 and 194 of 2000 against the respective appellants. An order of arrest was passed by the Master on 07. 11. 2001 against both the appellants. According to the appellants it came to their knowledge only on 26. 06. 2006, as during the interregnum period, the appellants were discussing with the decree holder to arrive at a settlement, that too, without even knowing that the order of arrest was already passed on 07. 11. 2001. Immediately, they filed applications to recall the order of arrest, but the Master passed a conditional order to keep the warrant of arrest pending by directing the judgment debtors i. e. , appellants to pay a sum of Rs. 10,00,000/- on or before 15. 07. 2006. Aggrieved by the order of the Master dated 03. 07. 2006, Application Nos. 2284 and 2286 of 2006 were filed by the respective appellants and Application Nos. 2285 and 2287 of 2006 were filed for stay of the execution proceedings pending disposal of the applications. Learned single Judge, by the impugned order dated 09. 06. 2007, dismissed all the applications. Aggrieved by the order of the learned single judge, these two separate appeals are filed by the appellants.

(3.) IN order to answer the issue of maintainability of appeals it would be necessary to refer to the relevant provisions of Madras high Court O. S. Rules and the Code of Civil Procedure. Order I Rule 4 of the o. S. Rules contains definitions, and Clause (3) thereof provides that the term "court" include a Judge, or Master, or First Assistant Registrar, original side. By virtue of Order XIV Rule 10 (xxix) all applications for or relating to an order for transmission or for the execution of a decree or order of arrest, attachment, sale or otherwise shall be made to the Master. Order XIV rule 12 of the O. S. Rules provides that any person affected by any order of the master (except Court-fees) , in respect of all matters judicially dealt with in exercise of the powers delegated to him by the Chief Justice from time to time may appeal therefrom to a Judge. Order XXX, Rule 3 of O. S. Rules provides that all acts directed or permitted to be done by these Rules, or orders passed by the Registrar, Master or Taxing Officer shall be deemed to be judicial, quasi judicial or non judicial acts, as the case may be, within the meaning of section 128 (2) (i) of the Code of Civil Procedure. Section 128 of the Code of civil Procedure inter-alia enumerates matters in respect of which Rules can be framed by the High Court. Clause (i) of sub rule 2 of Section 128 of the Code of Civil Procedure provides for delegation to any Registrar, Prothonotary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties.