C CHANTHANAMUTHU PILLAI Vs. K PADMANABHAN NADARALIAS PERUVATHAR

JUDGEMENT

(1.) THIS revision has been directed against the order passed in E.P.No.52 of 1983 in O.S.No.62 of 1980 on the file of the Subordinate Judge, Nagercoil.

(2.) THE revision petitioner is the defendant and the respondent is the plaintiff in the suit O.S.No.62 of 1980. In the Court of the Subordinate Judge, Nagercoil the respondent obtained a decree for specific performance of contract of sale with costs. He filed E.P.No.52 of 1983 for realising the said costs. THE petitioner resisted the said execution proceedings on the ground that as per the decree he is entitled to get a sum of Rs.6,700 from the respondent and the costs may be set off against the said amount. THE trial Court rejected the said contention on the ground that it is open to the petitioner to realise that amount at any time by separate proceedings and therefore it is not a ground on which he can refuse to pay the amount claimed in this execution petition. Aggrieved against this order the petitioner has filed the above revision petition.

(3.) MR.R.S.Subramani learned counsel for the respondent, argues that the above decision of a Bench of this Court will not apply to the facts of the present case since in this case the petitioner has already filed an appeal against the decree for specific performance and the same is pending. Moreover he has defaulted to deposit the costs as per the orders of the appellate Court in that appeal and when he sought for interim stay in respect of the decree for specific performance. I feel that the pendency of the appeal has no bearing in so far as the present position in which the parties are situate. If the appeal is allowed certainly the rights of the parties will be worked out accordingly. In any event that will not be a bar for invoking the provision under Or.21, R.19, C.P.C. Therefore, the petitioner will be entitled to adjust costs from the amount payable by the respondent towards the decree for specific performance. Since the costs payable by the petitioner is lesser than the amount payable by the respondent the present execution petition is not sustainable. Therefore, the revision petition is allowed. No costs.