BANK OF MADURAI LTD Vs. M SUNDARA MAHALINGAM

JUDGEMENT

(1.) THE plaintiff/decree holder is the Revision Petitioner, who failed to convince the lower court and get his application for the delay in representation condoned.

(2.) THE suit was for recovery of the money by the bank and the same was decreed on 12.7.1976. E.P.No. 238of 1978 was filed and was dismissed on 23.8.1978 for non-payment of batta. Again E.P.No.480 of 1978 was filed and the same was dismissed on 18.8.80 again for non-prosecution and exactly on the last day of the expiry of twelve years, the present E.P. was filed on 12.7.1988. It appears, the E.P. was returned for rectification of some defects and the same was not properly complied with. According to the learned District Munsif, the defects remained unrectified and when finally the E.P. was represented, there was a delay of 57 days in representation at various stages and the only return appears to be that the decree copy was not enclosed, and therefore, the E.P. was dismissed. I am really shocked at the attitude of the learned Munsif. Knowing fully well that this is the last E.P. and the only chance for recovering the money, if at all, possible by the plaintiff. Learned District Munsif ought to have been more careful in dealing with such execution petitions.

(3.) THE court must always take into consideration that the force or effect of the decree must not be whittled down by pure technicalities. A positive approach, to make the plaintiff realise the fruits of the decree must be made by every executing court. Any discretion if available, with the court should be rendered in favour of the plaintiff and towards realisation of the satisfaction of the decree and the plaintiff eating the fruits of the decree. In my opinion, if such course is not adopted by every executing Court, which executes a decree, there will be no meaning for the existence of such Courts in the country. THErefore, in my considered view, learned District Munsif is thoroughly wrong in not exercising his discretion to come to the aid of the plaintiff in realising the fruits of the decree.