Murugan @ Murahari vs Nandhan

P.R. Shivakumar, J.—The Judgment-debtor in O.S. No. 133 of 2007 on the file of the learned District Munsif, Dhrmapuri faced an Execution proceedings in the said Court in E.P. No. 62 of 2012 for his arrest and detention in Civil prison. He pleaded his inability to raise the funds to satisfy the Decree and prayed for an Order permitting him to pay the decree amount in installments. The Executing Court passed an Order holding that the Judgment-debtor was having means to pay the Decree amount and directed his arrest by 3.1.2014. The said Order was challenged by the Judgment-debtor by filing a Revision before this Court in C.R.P. (NPD) No. 4848 of 2013. The said Civil Revision Petition was moved as an emergent matter during Christmas vacation before the Hon''ble Vacation Judge and the following Order came to be passed:

Notice of motion returnable by 2 weeks. Interim stay on condition the Petitioner deposits the entire Decree amount on or before 6.1.2014. If the Interim Order is not complied with, the CRP stands dismissed and it is made clear that no extension of time to deposit the amount would be granted.

After getting a copy of the said Order, the Judgment-debtor/Petitioner in the Civil Revision Petition has come forward with the present Review Application contending that the said Order is bound to be reviewed as according to the learned Counsel for the Petitioner, there is an error apparent on the face of the record. It is also contended by the learned Counsel for the Petitioner that since the said Order came to be passed at the time of admission without Notice to the Respondent, for the Review of the said Order no notice need be given to the Respondent. It is the further contention of the learned Counsel for the Petitioner that once Notice of Motion is directed to be issued in the main Civil Revision Petition and an Interim Order of stay is passed in the Miscellaneous Petition subject to a condition, default of compliance with the condition shall lead to the dismissal of the Miscellaneous Petition alone and dismissing the Civil Revision Petition itself for the non-compliance of the condition imposed for the grant of Interim Order shall be unknown to law and the same is an error apparent on the face of the record, which is liable to be corrected by reviewing the said Order.

This Court is satisfied with the tenability of the above said contention made by the learned Counsel for the Petitioner. As rightly contended by the learned Counsel for the Petitioner, when a Common Order is sought to be passed in the main case and the Miscellaneous Petition or even when a separate Order issuing Notice to the other party before admission is sought to be passed, such an Order either admitting or directing Notice before admission cannot be made conditional. If an Interim Order is granted imposing a condition for the enjoyment of such an Order with a further direction that the Miscellaneous Petition seeking such Interim Order would stand dismissed on default of compliance with condition, such an order shall be perfectly valid and on the other hand, the admission or dismissal of the main case cannot be made dependent on fulfillment of such a condition imposed for the grant of the Interim Order. In this regard, as rightly contended by the learned Counsel for the Petitioner, there is an error apparent on the face of the record. The error is that while intending to direct dismissal of the Miscellaneous Petition, by inadvertence, it has been directed that the Civil Revision Petition itself will stand dismissed on the failure to comply with the condition. Such a mistake that crept-in because of the inadvertence is correctable by this Court as an error apparent on the face of the record. Accordingly, the Order is clarified as follows:

(i) The first part of the Order directing Notice of Motion returnable by two weeks will be intact.

(ii) So far as the later part of the Order is concerned, since it is contended by the Petitioner that the Execution Petition being one for arrest and detention of the Revision Petitioner in execution of a Money Decree, which decree is not challenged by the Revision Petitioner and he pleads only absence of means to pay the amount, the direction to deposit the entire Decree amount as a condition for the grant of stay will virtually make the Civil Revision Petition itself infructuous and that hence, that part of the Order also deserves to be reviewed and modified. This Court agrees with the above said contention of the learned Counsel for the Petitioner and modifies the later part of the Order dated 30.12.2013 by simply directing Notice to the Respondent.