Madras High Court
A.Thirunarayanan vs Senthilkumari on 9 July, 2021
C.R.P.(N.P.D).No.1157 of 2018
and C.M.P.No.5981 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.07.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(NPD) No.1157 of 2018
and
C.M.P.No.5981 of 2018
A.Thirunarayanan ... Petitioner
Vs
Senthilkumari ... Respondent
Prayer :- Civil Revision Petitions are filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
17.01.2018 made in I.A.No.106 of 2017 in O.S.No.45 of 2011 on the file
of the Court of District Munsif cum Judicial Magistrate,
Kattumannarkoil.
For Petitioner : Mr.A.Muthukumar
For Respondent : M/s.Varsha Ramesh for
Mr.P.R.Thiruneelakandan
ORDER
This Civil Revision Petition is field against the fair and
decreetal order dated 17.01.2018 made in I.A.No.106 of 2017 in
O.S.No.45 of 2011 on the file of the Court of District Munsif cum
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1157 of 2018
and C.M.P.No.5981 of 2018
Judicial Magistrate, Kattumannarkoil, thereby dismissing the petition to
condone the delay in filing the petition to set aside the ex-parte decree.
2. The revision petitioner is the second defendant and the
respondent is the plaintiff. The respondent filed a suit in O.S.No.45 of
2011 for partition. On receipt of the suit summons, the petitioner failed
to appear before the Trial Court and as such, he was set ex-parte and
ex-parte decree was passed on 23.11.2011. Therefore, the petitioner filed
a petition in I.A.No.106 of 2017 to set aside the ex-parte decree with a
delay of 1878 days. In the mean while, the respondent herein filed an
application in I.A.No.63 of 2015 for passing a final decree and the same
was allowed on 03.06.2015. Aggrieved by the same, the respondent filed
an appeal in A.S.No.66 of 2019. In the said appeal, the respondent
contended that 8 items of the properties were left out and item Nos.25
and 26 were already sold by the respondent. Therefore, the respondent
contended that the final decree has to be set aside and the case be
remitted back to the Trial Court for re-consideration according to the
existing circumstances to satisfy both the petitioner and the respondent
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1157 of 2018
and C.M.P.No.5981 of 2018
herein. Considering the same, the First Appellate Court by the Judgment
and Decree dated 17.03.2021, set aside the decree passed in I.A.No.63 of
2015 in O.S.No.45 of 2011 and remitted the case back to the Trial Court
for disposal in respect of final decree.
3. The learned counsel for the petitioner submitted that
pending the present Civil Revision Petition, on 18.11.2019, the
respondent herein issued notice, thereby called upon the petitioner to
allot 1/5th share in respect of the other properties, which were already left
out in the suit for partition. Though, the final decree was set aside
without preliminary decree with the left out properties, it is not possible
to pass any final decree.
4. In view of the above, the order dated 17.01.2018 made in
I.A.No.106 of 2017 in O.S.No.45 of 2011 on the file of the Court of
District Munsif cum Judicial Magistrate, Kattumannarkoil, is hereby set
aside and the Civil Revision Petition is allowed on condition that the
petitioner shall pay a sum of Rs.10,000/- as cost within a period of two
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1157 of 2018
and C.M.P.No.5981 of 2018
weeks, failing which the order passed by this Court shall stand
automatically cancelled. After restoration of the suit, the parties are at
liberty to add left out properties for partition. The Trial Court is directed
to dispose of the suit within a period of three months from the date of
restoration of the suit on its file. Consequently, connected Miscellaneous
Petition is closed. No order as to costs.
09.07.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The District Munsif cum Judicial Magistrate,
Kattumannarkoil.
https://www.mhc.tn.gov.in/judis/
C.R.P.(N.P.D).No.1157 of 2018
and C.M.P.No.5981 of 2018
G.K.ILANTHIRAIYAN,J.
Lpp
C.R.P.(NPD) No.1157 of 2018
and C.M.P.No.5981 of 2018
09.07.2021
https://www.mhc.tn.gov.in/judis/
