Madras High Court
Sivalingam vs Gandhi on 29 January, 2021
CRP.NPD.No.3511 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3511 of 2015
and MP.No.1 of 2015
1.Sivalingam
2.Pushpam
3.Sivasankar
4.Sivasankari
5.Sivarani alias Chinnapapppa ..Petitioners
Vs.
1.Gandhi
2.Deivanai ..Respondents
PRAYER:
The Civil Revision Petition is filed under Section 115 of Code of
Civil Procedure against the fair and decreetal orders of the learned
District Munsif of Krishnagiri dated 12.09.2014 in IA.No.428 of 2014 in
OS.No.128 of 2011.
For Petitioners : Mr.J.Hariharan
for Mr.V.Nicholas
For Respondents : Mr.V.Lakshminarayan
1/6
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3511 of 2015
ORDER
The present Civil Revision Petition is arising out of fair and
decreetal orders of the learned District Munsif of Krishnagiri dated
12.09.2014 in IA.No.428 of 2014 in OS.No.128 of 2011 thereby
dismissing the petition to condone the delay of 519 days in filing the
set aside the exparte decree dated 02.03.2012.
2. The petitioners are the defendants in the suit filed by the
respondents herein for partition. After receipt of notice in the suit, the
petitioners engaged counsel on behalf of them. Thereafter they failed
to file any written statement and also failed to appear before the trial
court. Therefore, they were set exparte. The exparte decree was
passed on 02.03.2012. Thereafter, the respondents filed petition for
final decree in IA.No.826 of 2012. In the said petition also the
petitioners were duly served notice and the earlier counsel who
appeared on behalf of them in the original suit entered appearance on
15.10.2012 in the final decree application. Thereafter, they failed to
file any counter in the said application and the exparte final decree
was also passed on 28.02.2013. On the other hand, the petitioners
filed petition to set aside the exparte decree dated 02.03.2012 for the
reason that the counsel who appeared on behalf of them in the suit did
not properly instruct the petitioners to file written statement as well as
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CRP.NPD.No.3511 of 2015
other proceedings. Even after informing the fact of exparte final decree
it was not duly instructed to the petitioners to file appropriate petition
to set aside the exparte decree. Therefore, there was a delay of 519
days in filing the petition to set aside the exparte decree.
3. On perusal of the records, it shows that the petitioners
were duly served notice in IA.No.826 of 2012 for passing final decree
on 15.10.2012. Thereafter Advocate Commissioner was appointed and
final decree was passed on 28.02.2013. While pending final decree
application, after period of four months, without even filing any
counter in the final decree application, the petitioners filed petition in
the year 2014 to set aside the exparte decree with the delay of 519
days.
4. The first petitioner is the father. The second petitioner is
the first wife. They gave birth to the petitioners 3 to 5. The
respondents are born through the second wife of the first petitioner
herein. Now, the trial court decreed the suit and allotted 2/7 share in
the suit property in favour of the respondents herein.
5. The learned counsel for the petitioners would submit that
the suit property is an ancestral property and as such the respondents
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CRP.NPD.No.3511 of 2015
are not having equal share and as such the petitioners have got very
good case to succeed before the trial court.
6. The learned counsel for the respondents would submit that
admittedly the suit property was allotted to the first petitioner by way
of partition among their brothers. Therefore, the suit property is not
ancestral one and the respondents are having equal share in the suit
property and the trial court rightly allotted 2/7 share to them.
7. It is also curious to note that the petitioners did not file
any appeal suit as against the judgment and decree so far and also
failed to file any application to set aside the exparte final decree in
IA.No.826 of 2012.
8. The learned counsel for the petitioners would submit that
the petition to set aside the final decree application was filed and the
same was returned for the reason that the present petition to set aside
the exparte decree is pending.
9. In view of the above observations, this Court finds no
infirmity or illegality in the order passed by the court below.
Accordingly, this civil revision petition is dismissed. However, the
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CRP.NPD.No.3511 of 2015
petitioners are at liberty to re-present the petition to set aside the final
decree passed in IA.No.826 of 2012 within a period of two weeks from
the date of receipt of copy of this order and the trial court is directed
to dispose of the same on merits and in accordance with law.
Consequently, connected miscellaneous petition is closed. No order as
to costs.
29.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3511 of 2015
G.K.ILANTHIRAIYAN,J.
lok
To
The District Munsif
of Krishnagiri
CRP.NPD.No.3511 of 2015
29.01.2021
https://www.mhc.tn.gov.in/judis/
