Madras High Court
C.Baby vs S.Murugesan ... 1St on 20 July, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2021
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.(NPD) No.447 of 2021
and C.M.P.No.3893 of 2021
1.C.Baby
2.C.Devilakshmi
... Petitioners / 3rd party
Vs
1.S.Murugesan ... 1st Respondent / Plaintiff
2.C.Rathinambal
3.C.Kuppusamy
... Respondents 2 & 3 / Defendants 1 & 2
Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the Ex-parte Judgment and Decree dated 20.06.2013
passed in O.S.No.136 of 2013 on the file of the learned I Additional
Subordinate Judge, Erode and consequently set aside the Sale Deed dated
02.12.2014 registered as Doc.No.1119 of 2015 on the file of the Erode
Joint – I SRO.
For Petitioner .. Mr.Vignesh Venkat
For Respondent .. No appearance
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2
ORDER
This Civil Revision Petition has been filed taking advantage of
Article 227 of the Constitution of India.
2.Heard learned counsel for the revision petitioners.
3.The matter had been coming up on successive dates when notice
had directed to the respondents through Court and also privately and had
been served. But unfortunately, there is no appearance on behalf of the
respondents. The name and address of the respondents are printed in the
cause list. It is clear that the respondents had taken a conscious decision
to abstain from the proceedings of this Court.
4.This revision petition has been filed under Article 227 of the
Constitution of India, seeking interference with the exparte decree dated
20.06.2013 passed in O.S.No.136 of 2013 on the file of the I Additional
Subordinate Court, Erode and consequently, to set aside the Sale Deed
dated 02.12.2014 registered as Document No.1119/2015 on the file of the
Erode Joint-I Sub-Registrar Office.
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5.The revision petitioners, C.Baby and C.Devilakshmi are the
daughters of the 2nd respondent C.Rathinambal. The 3rd respondent
C.Kuppusamy is a brother of the revision petitioners and son of the 2 nd
respondent. On 11.12.2009, a Power of Attorney had been executed by
the 2nd respondent C.Rathinambal in favour of her son, 3rd respondent
C.Kuppusamy. On the same date, for good measure the 3rd respondent
C.Kuppusamy entered into an unregistered agreement of sale dated
11.12.2009 in favour of the 1st respondent S.Murugesan who is a
stranger to the family. Another agreement of sale was subsequently
entered into on 15.11.2010. This was registered.
6.In the meanwhile, the 2nd respondent C.Rathinambal, cancelled
the Power of Attorney executed by her in favour of her son, 3rd
respondent C.Kuppusamy. Confirming such a cancellation, a telegram
was also sent. Thereafter, she executed a Settlement Deed with respect to
the very same property on 20.11.2012 in favour of her daughters /
revision petitioners. But, based on the agreement of sale which was
registered dated 15.11.2010 and which was between the 3rd respondent
C.Kuppusamy and 1st respondent S.Murugesan, a suit for specific
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performance was filed by C.Murugesan against C.Rathinambal and
C.Kuppusamy in O.S.No.136 of 2013 on the file of the I Additional
Subordinate Court, Erode. An exparte decree was passed on 20.06.2013.
7.On that particular date, the property had already vested with the
revision petitioners herein, in view of the Settlement Deed executed by
C.Rathinambal on 20.11.2012. This Settlement Deed was also prior to
the institution of the suit. This would naturally indicate that the suit had
been filed against two defendants namely, C.Rathinambal and
C.Kuppusamy who had no right or title over the property. Naturally, they
remained exparte and even in the present revision petition, they have
chosen not to appear before this Court. An exparte decree relating to
specific performance was granted. Based on that, the Court had also
executed a Sale Deed on 02.12.2014 in favour of 1 st respondent
S.Murugesan which document had been registered as Doc.No.1119 of
2014 on the file of the Erode Joint-I Sub-Registrar Office. This particular
exparte judgment and decree in O.S.No.136 of 2013 is now questioned in
the present Revision Petition.
8.The petitioners also filed O.S.No.568 of 2016 questioning the
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said judgment and decree. Since, the Registry had raised an objection
with respect to parallel proceedings by initiating present Revision
Petition and also by filing a suit in O.S.No.568 of 2016 had been
withdrawn.
9.This Court had awaited appearance on behalf of the
respondents, but such wait has been in vain. Nobody had entered
appearance.
10.It is clear that O.S.No.136 of 2013 had been instituted by a
person who had no valid right over the agreement since the said
agreement in his favour was executed on the basis of a Power of
Attorney, which Power of Attorney was subsequently cancelled. The
agreement could not be executed, since the defendants even cannot
convey the property since in view of the settlement deed, the revision
petitioners were the owners of the properties. Even though it could be
seen or it could be presumed that the mother, her son and two daughters
are playing a game of twist and turn over the property still the exparte
judgment and decree in O.S.No.136 of 2013, will necessarily have to be
interfered with and the same is set aside and the suit is restored back to
file.
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11.Let the learned I Additional Subordinate Judge, Erode, re-
examine the facts and thereafter pass a considered judgment on
appreciation of the facts as pleaded by all the parties.
12.In the Revision Petition, there is also a relief sought to cancel
the Sale Deed dated 02.12.2014 registered as Doc.No.1119 of 2014, but I
will leave that relief to be addressed by the learned I Additional
Subordinate Judge, Erode. The revision petitioners herein, who are not
parties in the suit, if they are so advised may join the said suit as party
defendants and thereafter, urge the Court to pass appropriate orders with
respect to the Sale Deed. I am confident that a considered decision would
be taken by the learned I Additional Subordinate Judge, Erode, in that
regard.
13.With the said observations, the Revision Petition is allowed to
the limited extent of setting aside the exparte judgment and decree in
O.S.No.136 of 2013. No costs.
20.07.2021
smv
Index : Yes / No
Internet : Yes / No
Speaking order : Yes / No
To:-
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The I Additional Subordinate Court, Erode.
C.V.KARTHIKEYAN,J.
Smv
C.R.P.(NPD) No.447 of 2021
20.07.2021
https://www.mhc.tn.gov.in/judis/
