caselaws.org
Supreme Court of India
M/S. Golden Earth Groves Ltd. vs M/S. Ion Exhange Enviro Farms Ltd. on 11 February, 2020Author: R. Banumathi
Bench: R. Banumathi, S. Abdul Nazeer, A.S. Bopanna
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1482 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 28113 OF 2018)
M/S. GOLDEN EARTH GROVES LTD. …APPELLANT(S)
VERSUS
M/S. ION EXHANGE ENVIRO FARMS LTD. …RESPONDENT(S)
O R D E R
R. BANUMATHI,J.
Leave granted.
2. Being aggrieved by allowing of the Revision Petition
filed by the respondent-decree holder and setting aside the
order passed in E.A.No. 946/2006 in E.P.No. 267 of 2005 in
O.S. No. 271 of 1999 (on the file of Principal Sub Court,
Tirunelveli), the appellant-judgment debtor has preferred this
appeal.
3. The brief facts of the case are as follows:
Respondent filed a suit being O.S. No. 271 of 1999
against the appellant with respect to recovery of money. It
was decreed in favour of respondent vide order dated
22.02.2002. Respondent filed Execution Petition No. 158/2004
Signature Not Verified
before
Digitally signed by
MADHU BALA
Date: 2020.03.04
the Court which was dismissed for default on
10:20:55 IST
Reason:
05.10.2004. Respondent filed another Execution Petition No.
267/2005. As no one appeared on behalf of the appellant-
2
judgment debtor, the order was passed ex-parte in Execution
Petition No. 267/2005 on 26.09.2005. Summons were returned;
due to non-serving of summons, a publication was also made
with respect to the auction of the property in the local
newspaper. Subsequently, the property was sold in court
auction on 03.02.2006 and the respondent-decree holder himself
made a bid of the suit property for Rs.6,00,001/-. The sale
was confirmed in the favour of respondent.
4. The appellant aggrieved by the ex-parte order dated
26.09.2005 passed in Execution Petition No. 267/2005 filed an
application before the Sub-Judge under Order 21 Rule 106 CPC.
The appellant contended that he came to know about the ex-
parte order only on 04.08.2006. Learned Sub-Judge vide order
dated 04.04.2008 allowed the application filed by the
appellant on the ground that : (i) when the summon was sent to
the appellant’s address, the same was returned stating the
remark that the appellant was not residing at that old
address. It was held that the summon should have been sent
properly to the correct address of appellant. It was further
held that since there was no possibility for appellant to know
about the Execution order and (ii) that appellant is entitled
for the relief prayed by him as both the parties should be
given equal opportunities to be heard. Ex-parte order dated
26.09.2005 was set aside and Execution Petition was directed
to be heard afresh.
5. Being aggrieved, the appellant-judgment debtor has
preferred revision before the High Court. The High Court vide
3
order dated 20.09.2017 allowed CRP on the ground that the
appellant-judgment debtor had the knowledge about the ex-parte
order, newspaper publication was also made and the notice of
auction was pasted on the suit property. But the appellant
did not take any action thereafter. When the auction was
confirmed in favour of respondent, only thereafter appellant
objected.
6. We have heard Mr. V. Balaji, learned counsel appearing
on behalf of the appellant as well as Mr. Amey Nargolkar,
learned counsel appearing on behalf of the respondent-decree
holder and perused the impugned judgment and materials on
record.
7. As pointed out by the Execution Court that when the
summon was sent to the appellant’s address, the same was
returned with the remark that the appellant was not residing
at that old address. When summon has not been duly served upon
the appellant-judgment debtor, the Execution Court should have
ordered issuance of fresh notice. On the other hand, the
appellant was set ex-parte on 04.08.2006 and the proceedings
in Execution Petition proceeded further and the property was
put to auction and the respondent-decree holder himself has
become the auction purchaser in the sale conducted on
03.02.2006. Though it is stated that the publication was
effected by the respondent-decree holder and it is also stated
that the publication was in Malayalam. There is nothing on
record to show that the appellant-judgment debtor was well
conversant with Malayalam. When there was no effective
4
service on the appellant-judgment debtor, in our view, the
Execution Court ought to have issued a fresh notice rather
than ordering auction of the property. In such view of the
matter, the impugned order of the High Court is liable to be
set aside. Consequently the Execution Petition No. 267/2005
has to be restored.
8. Learned counsel appearing on behalf of the respondent-
decree holder, on instructions, submitted that if the decree
amount is paid with such interest as ordered by the Court, the
respondent would be satisfied. Considering the submissions of
the learned counsel appearing on behalf of the respondent-
decree holder and the facts and circumstances of the case, we
deem it appropriate that in full satisfaction of the decree
passed in O.S. No. 271 of 1999, the respondent-decree holder
would be entitled to receive the sum of Rs.12,50,000/- (Rupees
twelve lakhs fifty thousand).
9. Pursuant to the order of this Court dated 16.11.2018,
the appellant-judgment debtor has already deposited an amount
of Rs. 10,00,000/- (Rs. 5,00,000/- plus Rs.5,00,000/-) before
the Execution Court. In addition to Rs. 10,00,000/- (Rupees
ten lakhs). The respondent-decree holder is permitted to
withdraw the amount of Rs. 10,00,000/- (Rupees ten lakhs)
deposited before the Execution Court, Principal Subordinate
Judge, Tirunelveli. The appellant-judgment debtor shall pay an
amount of Rs.2,50,000/- (Rupees two lakhs fifty thousand) in
the name of the respondent-decree holder within a period of
eight weeks. The amount of Rs. 12,50,000/- (Rupees twelve
5
lakhs and fifty thousand) is in full satisfaction of all the
claims of the respondent-decree holder. Since the respondent-
decree holder has been paid the decree amount (as agreed by
the parties), the court auction sale held on 03.02.2006 is set
aside.
10. The appellant is at liberty to make necessary
application before the concerned sub Registrar for making
appropriate entries in relation to cancellation of the court
auction sale dated 03.02.2006. The concerned Sub-Registrar
shall take note of this order and make necessary entries in
the Registers.
11. The appeal is, accordingly, allowed.
……………………………………………………….J.
[R. BANUMATHI]
……………………………………………………..J. [S. ABDUL NAZEER}
NEW DELHI ……………………………………………………….J.
11TH FEBRUARY, 2020 [A.S. BOPANNA]
Comments