N.Muthu Nambu vs S.Namburajan
2021 Latest Caselaw 709 Mad

                                                                              C.M.P(MD)No.2408 of 2020
                                                                                                     in
                                                                               AS(MD)SR.No.8252 of 220


                                 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 08.01.2021

                                                       CORAM:

                          THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
                                                 AND
                                THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

                                           C.M.P(MD)No.2408 of 2020
                                                      in
                                           AS(MD)SR.No.8252 of 2020

                      1.N.Muthu Nambu
                      2.N.Soundararajan               ... Petitioners/Appellant

                                                         Vs.

                      1.S.Namburajan
                      2.S.Soundaram @ Girija
                      3.S.Valaiammal @ Kasthuri
                      4.S.Thangaleela
                      5.S.Durgabai
                      6.N.Valeswari
                      7.N.Soundira Bharathy
                      8.R.Muthuramalingam           ... Respondents/Respondents


                      Prayer in C.M.P.(MD)No.2408 of 2020: Petition filed under Section 5
                      of the Limitation Act, praying to condone the delay of 1691 days in filing
                      the A.S.SR.No.8252 of 2020.


                      Prayer in AS(MD)SR.No.8252 of 220: Appeal filed under Order 41
                      Rule 1 r/w Section 96 of C.P.C, to allow the appeal and set aside the
                      judgment and decree dated 20.03.2015 made in O.S.No.47 of 2013 on
                      the file of the Principal District Judge, Ramanathapuram.



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                                                                                C.M.P(MD)No.2408 of 2020
                                                                                                       in
                                                                                 AS(MD)SR.No.8252 of 220


                                   For Petitioners         : Mr.PT.S.Narendravasan
                                   For R-1 to R-5          : Mr.S.A.Ajmalkhan
                                                             (R-6 and R-7 exparte)

                                                     ORDER

[Order of the Court was made by PUSHPA SATHYANARAYANA,J.]

The defendants 1 and 3 are the appellants, who have filed the

present appeal with the delay of 1691 days.

2. Admittedly, the petitioners were ex-parte in the suit, which was

filed for partition. The case of the petitioners is that they did not receive

any notice in the suit filed by the respondents 1 to 5 and they were not

aware of the decree being passed. It is not stated whether any

application for setting aside the ex-parte decree is filed by them.

3. In the affidavit filed by the respondents 1 to 3, it is stated that

an Advocate Commissioner was appointed for passing of the final decree

and final decree was also passed. The Execution Court has also ordered

delivery. The preliminary decree was passed on 20.03.2015 and final

decree was passed on 23.08.2017. Possession was taken on 22.01.2020.

It is also stated that the wife of the second petitioner/second appellant,

has signed in 'Delivery Athatchi'. Further, the execution petition was

terminated on 29.01.2020. After delivering possession to the respective

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parties as per the final decree, there is nothing to be decided in the

appeal.

4. Heard the learned counsel on either side.

5. As the parties are also closely related, it is not believable that

the petitioners/appellants were not aware of the suit and could not

contest the same and therefore, there is no merits in the delay petition,

as the petitioners have not given just and sufficient reason for condoning

the delay. Hence, this Civil Miscellaneous Petition is dismissed.

Consequently, appeal suit stands rejected at SR stage itself.

                                                                      [P.S.N.,J.] & [S.K.,J.]
                                                                           08.01.2021

                      Index          : Yes/No
                      Internet       : Yes/No
                      pm

                      Note :

                      In view of the present lock
                      down     owing    to   COVID-19
                      pandemic, a web copy of the

order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

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PUSHPA SATHYANARAYANA,J.

and S.KANNAMMAL,J.

pm

ORDER MADE IN C.M.P(MD)No.2408 of 2020 in

08.01.2021

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