M/S.Brakewel Automotive v. P.R.Selvam Alagappan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 03.06.2016

CORAM:

THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(NPD).No.1499 of 2016 and C.M.P.No.8225 of 2016 M/s.Brakewel Automotive Components (India) Pvt Ltd., Registered Office A-99, Second Floor (Right Side), Lader Puri, New Delhi - 110 012.

... Petitioner Vs.

P.R.Selvam Alagappan Proprietor, M/s.Kargappa Auto Products & M/s.Panns Auto Products Shobe Nilayam No.91, Panchaliamman Koil Street, Arumbakkam, Chennai.

... Respondent Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the order dated 08.02.2016 passed by the IX Assistant Judge, City Civil Court, Chennai in E.A.No.787 of 2015 in E.P.No.1787 of 2014 in C.S.(O.S.).No.1690 of 2010.

For Petitioner : Mr.Anand Samy

O R D E R

Challenging the order passed in E.A.No.787 of 2015 in E.P.No.1787 of 2014 in C.S.(O.S.).No.1690 of 2010 on the file of the IX Assistant Judge, City Civil Court, Chennai, the Decree Holder/plaintiff has filed the above Civil

Revision Petition.

2.The plaintiff filed the suit in O.S.No.1690 of 2010, originally before the High Court of Delhi, for recovery of money. Subsequently, the suit was decreed by the Delhi High Court on 16.12.2011. Thereafter, the decree was transmitted to the file of the City Civil Court, Chennai. 3.The plaintiff filed the Execution Petition in E.P.No.1787 of 2014 before the IX Assistant Judge, City Civil Court, Chennai and in the said Execution Petition, the respondent/defendant took out an Application under Section 47 of the Code of Civil Procedure in E.A.No.6319 of 2014. The petitioner/Decree Holder filed their counter stating that the Section 47 Application filed by the respondent is not maintainable. 4.

The learned counsel appearing for the petitioner submitted that the petitioner made their submissions before the Execution Court with regard to the maintainability of the Application. Thereafter, the respondent/Judgment Debtor filed his proof affidavit and sought to mark the documents in the Section 47 Application. Thereafter, the Decree Holder filed an Application in E.A.No.787 of 2015 to eschew the evidence of P.W.

as not maintainable.

5.The learned counsel appearing for the petitioner submitted that since Section 47 Application filed by the respondent itself is not maintainable, letting in oral evidence by the respondent cannot be permitted. No doubt, the petitioner has taken a plea in the counter filed in the Section 47 Application with regard to the maintainability of the Application. The issue with regard to the maintainability of the Application can be decided in the Section 47 Application and that cannot be put against the respondent/Judgment Debtor for letting in oral evidence and marking the documents in Section 47 Application. In order to establish his case, the respondent/Judgment Debtor has got every right to let in oral evidence and mark the documents.

The respondent cannot be prevented from letting in oral evidence and marking documents in Section 47 Application. Under Section 47 of the Code of Civil Procedure all questions arising between the parties to the suit in which the decree was passed shall be determined by the Court executing the decree and not by a separate suit. 6.In these circumstances, I am of the considered view that the Execution Court has rightly rejected the Application in E.A.No.787 of 2015 to eschew the evidence of P.W.

as not maintainable. The Execution Court can decide the issue with regard to the maintainability of the Section 47 Application while disposing of the Section 47 Application in I.A.No.6319 of 2014. It is needless to say that the petitioner/Decree Holder shall have the right of cross examining the respondent/Judgment Debtor and it is also open to the petitioner to let in oral and documentary evidences in the Section 47 Application. 7.In these circumstances, I do not find any error or irregularity in the order passed by the Execution Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed.

8.The Execution Court is directed to decide the issue with regard to the maintainability of the Application in I.A.No.6319 of 2014 while disposing of the said Application, on merits and in accordance with law, within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed. Index : No 03.06.2016 Internet : Yes va Note: Issue order copy on 07.06.2016.

To The IX Assistant Judge, City Civil Court, Chennai.

M.DURAISWAMY,J.

va C.R.P.(NPD).No.1499 of 2016 and C.M.P.No.8225 of 2016 03.06.2016