Madras High Court

R.Ramesh Bau vs K.Velusamy on 22 July, 2021

                                                                      C.R.P.(PD)No.32 of 2018 &
                                                                      C.R.P.(NPD)No.264 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 22.07.2021

                                                     CORAM

                                   THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                              C.R.P.(PD)No.32 of 2018
                                             C.R.P.(NPD)No.264 of 2018
                                             and C.M.P.No.1465 of 2018

                     R.Ramesh Bau                                       ... Petitioner in
                                                                               both CRPs

                                                        Vs.
                     K.Velusamy                                         ... Respondent in

both CRPs.

Prayer in C.R.P(PD)No.32 of 2018:- Civil Revision Petition is filed under Article 227 of the Constitution of India to direct the II Additional District & Sessions Judge (Fast Track Court.II) at Poonamallee to dispose off I.A.No.774 of 2017 in I.A.No.1628 of 2012 in O.S.No.53 of 2007 expeditiously and thereafter to take up E.P.No.43 of 2012.

Prayer in C.R.P(NPD)No.264 of 2018:- Civil Revision Petition is filed under Section 115 of C.P.C., to set aside the order dated 06.07.2017 passed in E.P.No.43 of 2012 in O.S.No.53 of 2007 on the file of the II Additional District & Sessions Court, Poonamallee.




https://www.mhc.tn.gov.in/judis/
                                                                            C.R.P.(PD)No.32 of 2018 &
                                                                            C.R.P.(NPD)No.264 of 2018

                                              For Petitioner
                                               in both CRPs      : Mr.G.Saravana Kumar

                                              For Respondent
                                               in both CRPs.
                                                          : Mr.J.Hudson Samuvel
                                                            For M/s.Paul & Paul
                                                    COMMON ORDER

The Civil Revision Petition in C.R.P.No.32 of 2018 has been filed

to direct the II Additional District & Sessions Judge (Fast Track

Court.II), Poonamallee to dispose off I.A.No.774 of 2017 in I.A.No.1628

of 2012 in O.S.No.53 of 2007 expeditiously and thereafter to take up

E.P.No.43 of 2012. The another Civil Revision Petition in C.R.P.No.264

of 2018 has been filed challenging the order dated 06.07.2017 passed by

the learned II Additional District & Sessions Court, Poonamallee in

E.P.No.43 of 2012 in O.S.No.53 of 2007, thereby ordered delivery of

possession.

2. In both the Civil Revision Petitions, the petitioner is the

judgment debtor and the respondent is the decree holder. The respondent

filed suit in O.S.No.53 of 2007 on the file of the Principal District Court,

Thiruvallur, for specific performance and permanent injunction as

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

against the petitioner. On receipt of the summon, the petitioner filed

written statement and thereafter the suit was transfered to the II

Additional District & Sessions Court, Fast Track Court-II, Ponnamallee.

Thereafter, the petitioner failed to appear before the Court below and he

was set exparte and exparte decree was passed on 26.07.2010.

3. On the strength of the exparte decree dated 26.07.2010, the

respondent filed executed petition in E.P.No.9 of 2011 and sale deed was

executed in favour of the respondent in respect of the suit property.

Thereafter, he also filed execution petition in E.P.No.43 of 2012 for

deliver of possession and the delivery was also ordered, by an order

dated 06.07.2017. Aggrieved by the same the petitioner filed the Civil

Revision Petition in CRP.No.264 of 2018.

4. In the mean time, the petitioner filed petition to set aside the

exparte decree along with the petition in I.A.No.1628 of 2012 to condone

the delay of 837 days. The said petition was dismissed for default by an

order dated 28.06.2017. Thereafter, the petitioner filed petition to restore

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

the condone delay petition with the delay of 24 days in I.A.No.774 of

2017. Since the same was kept pending by the Court below, the

petitioner filed the petition in CRP.No.32 of 2018 with the above said

prayer.

5. The case of the petitioner is that after filing the written

statement it was informed that next hearing date will be informed to the

petitioner/judgment debtor. Therefore, the petitioner was under bonafide

impression that the date of the hearing will be intimated to him. But he

was not received any notice and as such, he could not appear before the

trial Court. It is further averred that in the criminal case in C.C.No.1604

of 2007 on the filed of the Chief Metropolitan Magistrate, Egmore,

Chennai, the respondent produced the sale deed, which was executed in

pursuant to the decree passed in O.S.No.53 of 2007. Thereafter, the

petitioner came to know about the exparte decree and also transfer of the

suit to the file of the Additional District & Sessions Court No.II, Fast

Track Court-II, Poonamallee. Therefore, the petitioner filed petition to

set aside the exparte decree along with the petition in I.A.No.1628 of

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

2012 to condone the delay of 837 days. The said petition was dismissed

for default by an order dated 28.06.2017. Thereafter, the petitioner filed

petition to restore the condone delay petition with the delay of 24 days in

I.A.No.774 of 2017 and the same is pending.

6. On perusal of records revealed that after exparte decree

dated 26.07.2010, the respondent filed executed petition in E.P.No.9 of

2011 and sale deed was executed in favour of the respondent in respect

of the suit property. Thereafter, he also filed execution petition in

E.P.No.43 of 2012 for deliver of possession and the delivery was also

ordered by an order dated 06.07.2017. While pending the said execution

petition, the petitioner filed petition to set aside the exparte decree with

delay petition and the same was dismissed for default. Again the

petitioner filed restoration petition to restore the condone delay petition

with the delay of 24 days. Now the main execution petition itself ordered

and the delivery of possession was also ordered on 06.07.2017.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

7. In fact, the petitioner was already set exparte after filing of

his written statement. Therefore, the petitioner filed petition to set aside

the exparte decree along with the delay of 414 days in I.A.No.598 of

2008. It was allowed with cost of Rs.5,000/- and on compliance of the

said condition, the petition in I.A.No.643 of 2019 to set aside the exparte

order was allowed and the same was also duly informed to the petitioner

as well as to his counsel, with regard to the transfer of the Court from the

file of the Principal District Court, Thirvallur to the Additional District &

Sessions Court, Fast Track Court-II, Ponnamallee.

8. On perusal of evidence given by the petitioner herein, it

revealed that when the suit was transfered, the petitioner as well as his

counsel were very much present and they were duly informed about the

transfer of the suit. The relevant portion of the deposition is extracted

here under:-

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                                        ePjpkd;wj;jpy;       M$uhfp             md;iwa   jpdnk
                                        bjhpe;J bfhz;nld;/ vdJ tHf;fwp"Uk;


https://www.mhc.tn.gov.in/judis/
                                                                            C.R.P.(PD)No.32 of 2018 &
                                                                            C.R.P.(NPD)No.264 of 2018

                                    md;W      ,Ue;jhh;/      vdf;Fk;       tHf;fwp"Uk;
                                    KGikahf           bjhpa[k;/     md;iwa        jpdnk
                                    jpUts;S:h;       Kjd;ik          khtl;l       ePjpgjp.
                                    g{e;jky;yp       tpiut[       ePjpkd;w      vz;/1f;F
                                    khw;wg;gl;L        cj;jut[          gpwg;gpf;fg;gl;lJ
                                    vd;gJ         rhpay;y/    Mdhy;        kW     tha;jh
                                    njjpapy;        jhd;     mt;thW         khw;wg;gl;lJ
                                    vd;W      Kjd;ik          khtl;l      ePjpkd;wj;jpy;
                                    brhd;dhh;fs;/          19/11/2009     md;W       jhd;
                                    mt;thW          tHf;F         g{e;jky;yp      tpiut[

ePjpkd;wk; vz;/1f;F khw;wg;gl;lJ vdf;F bjhpa[k;/** Therefore, the petitioner had knowledge about the transfer of the suit and

thereafter the petitioner wantonly failed to appear before the trial Court.

Therefore, the Court below rightly ordered the delivery and this Court

finds no infirmity or illegality in the order passed by the Court below in

E.P.No.43 of 2012.

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

9. Accordingly, the petition in CRP.No.264 of 2018 stands

dismissed. In view of the dismissal of CRP.264 of 2018, the petition in

CRP.No.32 of 2018 also stands dismissed. Consequently, connected

miscellaneous petition is closed. There shall be no order as to costs.

22.07.2021 Internet : Yes Index : Yes/No Speaking order/Non-speaking order

rts

https://www.mhc.tn.gov.in/judis/ C.R.P.(PD)No.32 of 2018 & C.R.P.(NPD)No.264 of 2018

1. The II Additional District & Sessions Judge, Poonamallee.