K. DURAISAMY Vs. E. KUPPUSAMY AND ANOTHER

JUDGEMENT

(1.) According to the petitioner, originally, the respondent herein filed a suit in O.S.No.97 of 1998 before the Sub Court, Erode for recovery of possession and subsequently the suit was transferred to I Additional District Munsif, Erode and re-numbered as O.S.No.743 of 2004 wherein issues were framed. Thereafter, relationship between the parties was cardial. In view of the cardial relationship between the parties, the petitioner was under the bona fide impression that the first respondent would not prosecute the suit against the petitioner. However, when the petitioner received notice in E.P.No.23 of 2013 filed by the respondent/Decree Holder, he came to know the ex parte decree passed against the petitioner in O.S.No.743 of 2004 on 7.10.2004. Thereafter, he filed set aside application along with an application in I.A. No. 935 of 2013 to condone the delay of 3213 days on 26.8.2013 . After hearing both sides, the application was dismissed by the Court below on 10.9.2015. Thereafter, the petitioner has filed C.R.P.No.173 of 2016 before this Court. However, the same was withdrawn by the petitioner. Thereafter, the present application in E.A.No.18 of 2016 in E.P.No.23 of 2013 has been filed under section 47 of C.P.C. before the Court below praying to hold the decree and judgment, dated 7.10.2004 is void, unenforceable and not executable. The respondent/decree holder filed counter statement contending that the petitioner herein filed a suit for partition and separate possession in O.S.No.493 of 1997 before the Second Additional Sub Court, Erode only to coerce the respondents and others. The aforesaid suit was also dismissed for default on 10.12.2001 and the same was subsequently restored on 17.7.2003. Again the suit was dismissed for default on 6.10.2003. After the suit was posted for trial, the petitioner has filed one application after another for restoration of the suit. Since the petitioner was not appeared before the trial Court in the present suit in O.S.No. 743 of 2004, the petitioner was set ex parte and ex parte judgment and decree have been passed. Pursuant to the filing of E.P.No. 23 of 2013 to execute the decree, the petitioner has filed a petition to set aside the ex parte decree in the suit along with a petition in I.A.No.935 of 2013 to condone the delay of 3213 days and the same was also dismissed by the Court below on 10.9.2015. Thereafter, the petitioner has filed C.R.P.No.173 of 2016 before this Court. When the Civil revision petition was taken up by this Court, this Court expressed dissatisfaction and warned the revision petitioner with strong words and hence the Civil revision petition was withdrawn by the petitioner. The present application has been filed by the petitioner with an intention to drag on the proceedings in order to prevent the respondents from enjoying the fruits of the decree. The trial Court after examining the evidence adduced by both sides, has held that the executing Court cannot adjudicate upon the legality or correctness of the judgment unless it is a nullity and further held that the judgment and decree passed by the trial Court is legally enforceable or not can be decided by the appellate Court in revision or appeal and dismissed the application filed under section 47 of C.P.C.

(2.) The learned counsel for the petitioner would submit that the Court below failed to appreciate the provision under Order 15, Rule 2 of C.P.C. wherein it is held that the Court has to pronounce judgment on all issues. The learned counsel for the petitioner further contended that the Court below failed to follow the procedure prescribed under Order 20, Rule 5 C.P.C. wherein it is stated that it is mandatory that the Court shall state its findings or decisions with reasons on the issues framed in the suit. Therefore, the decree and judgment passed by the Court below are non-est in law and not executable. In support of his contention, the learned counsel for the petitioner relied on the following decisions of the Hon'ble Supreme Court and this Court.

(3.) Heard the learned counsel for the petitioner and the learned Amicus Curie who assisted this Court by making submission before this Court on the points for consideration, perused the materials on record and the decisions cited supra.