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Judgment
M. Venugopal, J.—The Petitioner/Defendant has filed the present Civil Revision Petition as against the order dated 26.8.2003 passed in E.P. No. 50 of 2002 in O.S. No. 1084 of 1981 passed by the learned District Munsif, Tirumangalamm.
The Executing Court while passing orders in E.P. No. 50 of 2002 in O.S. No. 1084 of 1981 on 26.8.2003, has among other things, observed that the claim of the revision Petitioner in claiming a sum of Rs. 35,481/-(Rupees thirty five thousand four hundred and eighty one) through cheque and the sum being denied by the Respondent/Plaintiff superficially on the basis of which, full relief cannot be granted and also granting of such a relief is not a proper one and consequently, dismissed the said application without costs.
Assailing the order of dismissal of the Executing Court in E.P. No. 50 of 2002 in O.S. No. 1084 of 1981 dated 26.8.2003, the learned Counsel for the Revision Petitioner/Defendant submits that the order of the Executing Court in E.P. No. 50 of 2002 in O.S. No. 1084 of 1981 dated 26.8.2003 is contrary to law and the same suffers from erroneous exercise of jurisdiction coupled with material irregularities surrounding the said order.
Proceeding further, it is the contention of the learned Counsel for the Petitioner/Defendant that the Executing Court should have appreciated the fact that the Respondent/Plaintiff has purchased the suit property on 25.3.1981 for Rs. 10,000/- (Rupees ten thousand)from Mohammed Beevi with a right of redeeming the mortgage dated 19.3.1979 by paying Rs. 9,000/- (Rupees nine thousand)to the Petitioner etc. and the Respondent/Plaintiff as per the decree has deposited a sum of Rs. 9,000/- (Rupees nine thousand)and the same has been invested in the Bank under Fixed Deposit and now, the said amount of Rs. 9,000/- (Rupees nine thousand deposited into the bank, has swelled to Rs. 35,481/- (Rupees thirty five thousand four hundred and eighty one)and the revision Petitioner is entitled to claim this amount of Rs. 35,481/- as a matter of right and therefore, has projected the cheque petition before the Trial Court by filing E.P. No. 50 of 2002. But, unfortunately, the same has been dismissed by the Executing Court by assigning improper and invalid reasons. The said impugned order is liable to be set aside by this Court sitting on revision by means of allowing the Civil Revision Petition in furtherance of substantial cause of justice.
Per contra, it is the contention of the learned Counsel for the Respondent/Plaintiff that the Respondent is entitled to claim a sum of Rs. 2,000/- (Rupees two thousand) per year as profits for future income as per order passed by this Court in C.M.P. Nos. 14968 of 1986 and 3276 of 1987 in S.A. No. 1851 of 1986 dated 31.3.1987 and only a sum of Rs. 10,000/-(Rupees ten thousand) in total has been paid by the Revision Petitioner and this sum of Rs. 10,000/- (Rupees ten thousand) is also included in one account and therefore, the Respondent/ Plaintiff is entitled to receive a sum of Rs. 10,000/-(Rupees ten thousand) deposited by the Revision Petitioner and therefore, the cheque petition has been rightly dismissed by the Executing Court.
Countering the submissions of the learned Counsel for the Respondent/Plaintiff, the learned Counsel for the Revision Petitioner/ Defendant submits that the Petitioner in chalan No. 133 on 29.7.1989 has remitted a sum of Rs. 2,000/- (Rupees two thousand) to the credit of O.S. No. 1084 of 1981 on the file of the Trial Court, further deposited in chalan No. 74 on 29.7.1995 a sum of Rs. 2,000/-(Rupees two thousand), in chalan No. 74 dated 26.7.1996 deposited another sum of Rs. 2,000/-(Rupees two thousand), as per chalan No. 84 on 29.7.1997 deposited a sum of Rs. 2,000/-(Rupees two thousand) and lastly, as per chalan No. 87 on 24.7.1998 deposited a sum of Rs. 2,000/- (Rupees two thousand) and the total aggregate sum of Rs. 10,000/- (Rupees ten thousand)so deposited by the Revision Petition is unconnected with the other amount of Rs. 9,000/-(Rupees nine thousand), which has been directed to be deposited by the 5 Hon''ble High Court as per order in C.M.P. Nos. 14968 of 1986 and 3276 of 1987 in S.A. No. 1851 of 1986 dated 31.3.1987 into Nationalized bank and since the said amount of Rs. 10,000/- (Rupees ten thousand) deposited by the Petitioner is unconnected with the sum of Rs. 9,000/-(Rupees nine thousand), being the decree amount deposited in a bank in fixed deposit as per order passed by this Court in C.M.P. Nos. 14968 of 1986 and 3276 of 1987 in S.A. No. 1851 of 1986 dated 31.3.1987, the Petitioner is entitled to receive a sum of Rs. 35,481/-(Rupees thirty fine thousand four hundred and eighty one) as claimed by him and as such, this Court is to allow the Civil Revision Petition in the interest of justice.
Added further, the learned Counsel for the Revision Petitioner brings it to the notice of this Court that the Respondent/Plaintiff in his counter to E.P. No. 50 of 2002 in paragraph No. 5 has clearly stated that a sum of Rs. 9,000/-(Rupees nine thousand) being the other amount deposited as per decree of the Court dated 24.8.1984 and after 18 years the said amount of Rs,9,000/-(Rupees nine thousand) has now accrued to a sum of Rs. 26,481/- (Rupees twenty six thousand four hundred and eighty one) and that the Petitioner is only entitled to receive a sum of Rs. 9,000/- (Rupees nine thousand) being the other amount.
Admittedly, there is no dispute as to the effect that the sum of Rs. 9,000/- being the decree amount in O.S. No. 1084 of 1981 has been deposited in State Bank of India, Tirumangalam Branch as per order of this Court in C.M.P. Nos. 14968 of 1986 and 3276 of 1987 in S.A. No. 1851 of 1986 dated 31.3.1987 and a sum of Rs. 26,481/-(Rupees twenty six thousand four hundred and eighty one) has been the interest amount to the said deposit of Rs. 9,000/-((Rupees nine thousand). The Petitioner claims not only the amount deposited namely Rs. 9,000/-(Rupees nine thousand) but the interest Rs. 26,481/-(Rupees twenty six thousand four hundred and eighty one). In all, the Petitioner claims a sum of Rs. 35,481/-(Rupees thirty five thousand four hundred and eighty one). Though in the counter of the Respondent/Plaintiff at paragraph No. 6 a plea is taken that the Revision Petitioner is only entitled to claim a sum of Rs. 9,000/-(Rupees nine thousand) being the decree amount in the suit. The said plea cannot be countenanced, because of the simple fact that as per decree, the Petitioner is entitled to claim a sum of Rs. 9,000/- (Rupees nine thousand) and this amount of Rs. 9,000/-(Rupees nine thousand) has been ordered to be deposited in a bank as per order of this Court in C.M.P. Nos. 14968 of 1986 and 3276 of 1987 in S.A. No. 1851 of 1986 dated 31.3.1987. Therefore, towards the deposited amount of Rs. 9,000/-(Rupees nine thousand) into the bank and the amount being a corpus one certainly any interest accrued thereto is only to be claimed by the Revision Petitioner and this has been claimed rightly by the Revision Petitioner.
Therefore, the Revision Petitioner is entitled to file E.P. No. 50 of 2002 before the Executing Court praying for issuance of cheque for the total sum of Rupees thirty five thousand four hundred and eighty one (Rupees nine thousand being the fixed deposit amount invested Rupees twenty six thousand four hundred and eighty one etc.). When that being the latent and patent position as seen from the facts and circumstances of the case, which float on the surface, the Executing Court while dismissing the E.P. No. 50 of 2002, has committed an error of jurisdiction and as such, this Court interferes with the said order passed by the Executing Court in E.P. No. 50 of 2002, which is not valid, in the eye of law.
Accordingly, this Court sets aside the order passed by the Executing Court in E.P. No. 50 of 2002 in O.S. No. 1084 of 1981 dated 26.8.2003 and allows the Civil Revision Petition to prevent an aberration of justice.
In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. Further, the Executing Court is directed to issue a cheque in favour of the Revision Petitioner for a sum of Rs. 35,481/- (Rupees thirty five thousand four hundred and eighty one) claimed by the revision Petitioner within a period of two weeks from the date of receipt of copy of this order. However, liberty is given to the Respondent/Plaintiff to file before the Executing Court a cheque application as per Civil Rules of Practice Rule 161 and 162 for the purpose of claiming a sum of Rs. 10,000/-(Rupees ten thousand) being a conditional amount deposited by the Petitioner on various dates. As and when such application is being filed by the Respondent/Plaintiff, the Executing Court is directed to dispose of the said application within a period of two weeks from the date of receipt such filing of the Petitioner of course by providing opportunities to other side for filing counter if any, in the manner known to law.