V. HUCHESWARAN versus MADRAS HARDWARE MART

Citation: [2005] SUPP. 4 S.C.R. 311 · Decided: 18-10-2005 · Supreme Court of India · Bench: AR. LAKSHMANAN · Disposal: Dismissed

Judgment (excerpt)

!a. 
~ 
V. HUCHESWARAN 
A 
v. 
MADRAS HARDWARE MART 
OCTOBER 18, 2005 
[DR. AR. LAKSHMANAN AND ALTAMAS KABIR, JJ.] 
B 
Restitution-Code of Civil Procedure I 908: Application for-Property 
dispute-Court decree with direction to judgment-debtor to sell his share of 
property to decree holder-Execution petition dismissed as time barred-Jn 
Civil revision petition, High Court condoning delay and matter remanded-
Thereafter, another petition for execution upheld by High Court, but Special 
Leave Petition (SLP) to Supreme Court against that withdrawn by judgment-
debtor, and consequent thereto sale deed executed in favour of decree holder 
and he was put into possession-In appeal to Supreme Court against High 
Court condoning delay in .filing of first execution petition, plea of restitution 
taken-Held: On withdrawal ofSLP order by which share of judgment-debtor 
was conveyed to decree holder became final-There was no question of 
restitution to position prior to the execution of the. decree. 
Respondent was originally a tenant of property in respect of which 
a partition suit was pending. Before and after passing of final decree, 
plaintiff and all defendants, except the appellant sold off their share in 
that property to respondent. However, appellant did not sell his share to 
respondent despite direction to do so in the final dec~ee. Execution petition 
filed by respondent was dismissed as time barred having been filed twelve 
years after passing of the decree. Aga"inst this, in Civil Revision Petition 
of respondent, High Court condoned the delay in filing of the execution 
petition and remanded the matter. Hence the present appeal. 
However, after the judgment of High Court, respondent had filed 
execution petition for direction to appellant to sell to him remaining share 
in suit property. This petition was allowed but first appeal against that 
was also allowed. High Court, in civil revision, set aside the order of the 
first appellant court and restored the order of the execution court. 
Appellant filed a Special Leave Petition to this Court against it, but same 
was withdrawn by them subsequently. Consequent to this, a sale deed was 
executed in favour of respondent in respect of share of appellant in 
311 
c 
D 
E 
F 
G 
H 
312 
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R. 
A impugned property and respondent was put into possession with the help 
of court bailiff and police. 
B 
Appellant contended that High Court was wrong in condoning the 
delay by respondent in filing execution petition and they should be 
restituted to position before filing of that petition. 
Dismissing the appeal, the Court 
HELD: Having withdrawn the Special Leave Petition which had been 
filed by appellant against the order by which his share in the suit property 
had been conveyed to the decree holder/respondent, the question of 
C restitution to the position prior to the execution of the decree does not 
and/or cannot arise. The order passed by the High Court having become 
final with the withdrawal of SLP it is no longer open to the judgment 
debtor/appellant to pray for restitution. The fact situation is such that it 
does not call for any interference with the impugned order passed by the 
High Court. [316-E-Fl 
D 
Hameed Joharan (D) and Ors. v. Abdul Salam (D) by LRs., [2001] 7 
SCC 573 and Prasanna Kumar Roy v. State of West Bengal and Ors., (19961 
sec 403, held inapplicable. 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7541-7542 
E of 2001. 
F 
From the Judgment and Order dated 22.11.95 of the Madras High 
Court in C.R.P. Nos. 711/93 and 7 of 1995. 
Ms. Fereshte D. Sethna, Ms. Anuradha Dutt and Ms. B. Vijayalakshmi 
Menon for the Appellant. 
Amit Sharma and S. Muralidhar for the Respondent No. I. 
The Judgment of the Court was delivered by 
ALTAMAS KABIR, J. O.S. No. 683/1970 before the X Asstt.Judge, 
City Civil Court, Madras was a partition suit in which a preliminary decree 
G for partition was passed on 28.4.1972 and was followed by a final decree for 
partition on 1.12.1975. The !st defendant in the suit is the father and the 
2nd, 3rd and 4th defendants and the I st plaintiff are the sons. The I st plaintiff 
having died, his legal representatives were brought on record as plaintiffs in 
his place. 
H 
V. HUCHESWARANv. MADRAS HARDWAREMART[ALTAMAS KABIR,J.] 
313 
Several Civil Revision Petitions, being C.R.P.Nos.711/1993, 4,5, and 7 A 
of 1995, all arising out of the aforesaid suit, were taken up for hearing and 
dispos

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