P PERIASAMY Vs. A RAMASAMY GOUNDER

JUDGEMENT

(1.) CIVIL Revision Petition filed under Section 115 of the CODE OF CIVIL PROCEDURE, 1908 against the order dated 20.10.2008 passed in unnumbered E.A.-- of 2008 in R.E.P.No.16 of 2008 in O.S.No.178 of 1998 on the file of the Sub-Court, Rasipuram (Suit and Execution Petition originally filed before the Sub-Court, Namakkal).The petitioners are judgment debtors in O.S.No.178 of 1998 on the file of the Sub-Court Namakkal. The suit is for specific performance of contract. The suit was decreed exparte on 12.08.2004 and the Court drafted the decree, directing the plaintiff to deposit a sum of Rs.1,25,000/- with the Court, within two months and within two months afterwards the defendants shall execute sale deed for Rs.2,25,000/- in favour of the plaintiff and in default the same be executed by the Court at the instance of the defendants and also a direction to the defendants to deliver the property to the plaintiff.

(2.) EARLIER, the suit was decreed exparte and pursuant to the direction in the said exparte decree, the respondent/plaintiff deposited Rs.1,25,000/- on 29.11.1999 itself with the Court. Thereafter, the petitioners filed petition to set aside the exparte decree and the same was allowed. However, the above said amount continued to remain in the Court deposit. Again, since the petitioners/defendants were not present before the Court, on 12.8.2004 another exparte decree was passed. But the fact, i.e., the deposit of Rs.1,25,000/- remaining in the court deposit, was not brought to the knowledge of the Court at the time of passing exparte decree on 12.08.2004 and the decree was wrongly drafted directing the plaintiff to deposit Rs.1,25,000/- within two months.

(3.) LEARNED counsel for the petitioners Mr.V. Raghavachari would strenuously contend that inasmuch as the respondent has consciously disobeyed the direction contained in the decree, he has to be non-suited for the relief of executing the decree and another ground is that the draft sale deed was not put to the knowledge of the petitioners and they were not afforded with the opportunity to project their objections on the contents of the sale deed and on this count also, the decree renders itself inexecutable.