Madras High Court
P.Subramani vs S.Vanaja on 16 February, 2021
CRP.NPD.No.2369 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No. 2369 of 2016
and
CMP.No.12227 of 2016
P.Subramani ... Petitioner
Vs.
S.Vanaja ... Respondent
PRAYER: The Civil Revision Petition is filed under Section 115 of the
Code of Civil Procedure, praying to set aside the fair and decretal order ated
06.04.2016 made in E.A.No.121 of 2016 in E.P.No.53 of 2015 in
O.S.No.441 of 2008 on the file of 1st Additional Sub Court, Erode and allow
the above CRP.
For Petitioner : Mr.M.V.Venkataseshan
For Respondent : Mr.C.E.Pratap
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order passed in E.A.No.121 of 2016 in E.P.No.53 of 2015 in O.S.No.441 of
2008 dated 06.04.2016 on the file of the learned 1st Additional Sub Court,
Erode, thereby, dismissing the petition to condone the delay in filing the
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CRP.NPD.No.2369 of 2016
application to set aside the ex-parte decree passed in the Execution Petition.
2. The respondent is the plaintiff and the petitioner is the second
defendant in the suit filed by the respondent herein for partition and
permanent injunction. The petitioner contested the suit and the suit was
decreed. As per the judgment and decree, the respondent was allotted 1/6th
share in the suit schedule properties. Thereafter, the petitioner did not file
any appeal suit and the respondent filed a final decree application and the
same was also allowed on 30.04.2014. An Advocate Commissioner was
appointed and the properties were divided and on the strength of the same,
the respondent filed the Execution Petition for delivery of possession. The
delivery of possession was also ordered. At that juncture, the petitioner filed
a petition to set aside the ex-parte order passed in the Execution Petition
with a delay of 39 days.
3. On a perusal of the affidavit filed in support of the condone delay
petition, the petitioner stated that he appeared in the final decree application
and also objected to the Advocate Commissioner's report. Thereafter, from
the month of November 2015 onwards, he suffered with Jaundice and as
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CRP.NPD.No.2369 of 2016
such, he was unable to meet his counsel. Therefore, he was set ex-parte
before the Execution Court. From which date he suffered from Jaundice and
which date he had taken treatment for Jaundice, nothing is stated in the
affidavit. Further, he had knowledge about the passing of the final decree on
30.04.2014. The properties were also already divided and the Execution
Petition itself was filed only for delivery of possession. At this juncture, the
petitioner come forward with the petition to set aside the ex-parte order
passed in Execution Petition that too without stating any sufficient cause for
the delay of 39 days in filing the application to set aside the ex-parte order.
Therefore, this Court finds no irregularity or illegality in the order passed by
the Court below.
4. Accordingly, this Civil Revision Petition is dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
16.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
http://www.judis.nic.in
CRP.NPD.No.2369 of 2016
G.K.ILANTHIRAIYAN,J.
kv
To
The 1st Additional Sub Court, Erode.
CRP.NPD.No. 2369 of 2016
16.02.2021
http://www.judis.nic.in
