Madras High Court
Sivakami vs Rajammal on 26 February, 2021
CRP.NPD.No.3982 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3982 of 2015 and
CMP.No.1 of 2015
1.Sivakami
2.Radhakrishnan ..Petitioners
Vs.
1.Rajammal
Chinnammal(died)
Karuppanna Gounder(died)
Samiappa Gounder (died)
Muthammal(died)
2.Shanthi ..Respondents
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
against the fair and decretal order dated 06.07.2015 passed in
EP.No.43 of 2014 in OS.No.256 of 1993 on the file of the District
Munsif Court, Kangeyam.
For Petitioners : Mr.K.Govi Ganesan
For Respondents : No appearance
ORDER
This civil revision petition is filed against the fair and
decretal order dated 06.07.2015 passed in EP.No.43 of 2014 in OS.No.256
of 1993 on the file of the District Munsif Court, Kangeyam thereby ordered
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3982 of 2015
delivery of possession.
2. The first respondent filed suit as against the petitioners
and others. The suit was decreed and aggrieved by the same, all the
defendants filed suit in AS.No.52 of 1996. The appeal suit was dismissed
for default and as such they filed petition to restore the appeal suit with
the delay petition. The condonation of delay petition was dismissed and as
such they preferred civil revision petition before this Court in CRP.No.3995
of 1999 and the same was allowed with cost of Rs.1,000/-. Even while
pending appeal suit, the first respondent filed execution petition in
EP.No.23 of 1998. After filing appeal suit, the first respondent withdrew
the execution petition. After dismissal of the appeal suit for default, again
the first respondent filed execution petition in EP.No.43 of 2014. Without
considering the restoration of the appeal suit, execution court ordered
delivery of possession in respect of the suit property by order dated
06.07.2015.
3. The learned counsel for the petitioners would submit
that after condoning the delay by this Court, when they were about to
restore the appeal suit, main bundle was misplaced in the Court.
Therefore, the petitioners could not able to proceed with the appeal suit.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3982 of 2015
Even today, the appeal suit is pending as against the judgment and decree
passed in OS.No.256 of 1993. Without considering the same, the execution
court ordered delivery of possession.
4. Though notice was served to the respondents and
names printed in the cause list, no one appeared on behalf of the
respondents before this Court in person or through pleader.
5. As against the judgment and decree passed in
OS.No.256 of 1996, all the defendants preferred appeal suit in AS.No.52 of
1996 on the file of the Sub Court, Dharapuram. The said appeal suit was
dismissed for default on 02.04.1997. The appellants filed petition to
restore the appeal suit with delay. The condone delay petition was
dismissed and aggrieved by the same, the legal heirs of the third
defendant preferred CRP.No.3995 of 1996 and the same was allowed by
order dated 19.11.2003. It was duly communicated to the first appellate
court i.e. Sub Court, Dharapuram. Even till today, no order has been
passed in the appeal suit. As submitted by the learned counsel for the
petitioners, after condone delay petition was ordered by this Court with
cost, the main bundle of the appeal suit was misplaced by the appellate
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3982 of 2015
court.
6. Considering the above, the order passed by the
Execution Court is liable to be set aside. Accordingly, this civil revision
petition is allowed and the order dated 06.07.2015 passed in EP.No.43
of 2014 in OS.No.256 of 1993 on the file of the District Munsif Court,
Kangeyam is set aside. The Sub Court, Dharapuram is directed to dispose
of the appeal suit in AS.No.52 of 1996 within a period of three months
from the date of receipt of copy of this order. If the main bundle in
AS.No.52 of 1996 is misplaced, the petitioners are permitted to reconstruct
the appeal and proceed with the same. It is also made clear that until
disposal of the appeal suit, the execution court is deferred in passing any
order in the execution petition. Consequently, connected miscellaneous
petition is closed. No order as to costs.
26.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3982 of 2015
To
1. The Subordinate Judge,
Dharapuram
2. The District Munsif,
Kangeyam.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3982 of 2015
G.K.ILANTHIRAIYAN,J.
lok
CRP.NPD.No.3982 of 2015
26.02.2021
https://www.mhc.tn.gov.in/judis/
