Madras High Court
Muthukumaran vs Iniyaasi on 28 July, 2021
CRP.NPD.No.2168 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2168 of 2018
and
CMP.No.13527 of 2018
Muthukumaran ..Petitioner
Vs.
Iniyaasi ..Respondent
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
against the fair order and decretal order dated 13.06.2018 passed in
IA.No.49 of 2017 in unnumbered OS.No. of 2017 on the file of
Subordinate Court, Ulundurpet, originally in IA.No.135 of 2017 in
OS.No.26 of 2014 on the file of Principal Sub Court, Villupuram.
For Petitioner : Mr.Rajarajan
for M/s.T.Gandhi
For Respondent : Mr.M.Himavanth
1/6
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.2168 of 2018
ORDER
This Civil Revision Petition is filed against the fair order and
decretal order dated 13.06.2018 passed in IA.No.49 of 2017 in
unnumbered OS.No. of 2017 on the file of Subordinate Court,
Ulundurpet, thereby dismissing the petition to condone the delay in
filing the petition to set aside the exparte decree.
2. The petitioner is the defendant and the respondent is the
plaintiff. The respondent filed suit for specific performance on the
strength of the agreement for sale dated 27.05.2013. On receipt of the
suit summon, the petitioner failed to appear before the court below
and as such he was set exparte and exparte decree was passed. On
receipt of notice in the execution petition, the petitioner has come
forward to file the petition to set aside the exparte decree with the
delay of 920 days and the same was dismissed. Aggrieved by the
same, the present civil revision petition has been filed.
3. The learned counsel for the petitioner would submit that the
petitioner was suffered with jaundice and as such he could not able to
produce any medical records for his treatment. Though he was treated
at Anna Nagar, Tambaram and Poonamallee Siddha Hospitals, no
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CRP.NPD.No.2168 of 2018
records were produced by him. He further submitted that the exparte
decree dated 01.08.2014 is not in consonance with Order 20 Rule 5 of
CPC. Though the petitioner did not file any written statement, the
court below ought to have framed the points for determination to be
answered for the points. Without doing so, the trial court simply
allowed the suit. He further submitted that the petitioner has got good
case to succeed in the suit, since even according to the respondent,
the petitioner received a sum of Rs.4,15,000/- out of total sale
consideration of Rs.5,00,000/- and the time fixed for execution of sale
deed was six months. Therefore, it shows that when the petitioner
borrowed some amount, it was executed only for security purpose and
the petitioner never intended to sell the property.
4. Per contra, the learned counsel for the respondent would
submit that the petitioner did not state any sufficient cause for the
huge delay of 920 days in filing the condone delay petition to set aside
the exparte decree. Admittedly, the petitioner received suit summon
and thereafter failed to appear before the trial court. Therefore, he
was set exparte and exparte decree was passed on 01.08.2014. On
the strength of the decree, the respondent filed execution petition. In
the execution petition also, the petitioner was duly served and he
entered his appearance through his counsel on 08.12.2016. After
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CRP.NPD.No.2168 of 2018
period of three months i.e. on 08.03.2017 only the petitioner filed
petition to set aside the exparte decree with delay of 920 days.
Therefore, the petitioner was wantonly away from the proceedings and
he was set exparte. As such, the court below rightly dismissed the
petition to condone the delay of 920 days.
5. The petitioner is the defendant and the respondent is the
plaintiff. The respondent filed suit for specific performance. On perusal
of the plaint, revealed that on 27.05.2013, the petitioner received a
sum of Rs.4,15,000/- as part of the sale consideration as an advance
and agreed to sell the suit property. The total sale consideration was
fixed at Rs.5,00,000/- and the time fixed for execution of sale deed
was six months. For payment of remaining sale consideration of
Rs.85,000/-, time was fixed for six months. That apart, exparte
judgment is not in consonance with Order 20 Rule 5 of CPC. When the
petitioner was set exparte, the trial court mechanically allowed the suit
as prayed for. That apart, the petitioner was examined as PW1. Even
then, the court below did not even mention about his evidence.
Therefore, though the petitioner appeared in the execution petition on
08.12.2016, thereafter he collected details from the court below and
filed petition to set aside the exparte decree on 08.03.2017.
Therefore, the petitioner may be given one more opportunity to defend
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CRP.NPD.No.2168 of 2018
the suit on merits.
6. In view of the above, this civil revision petition is allowed and
the order dated 13.06.2018 passed in IA.No.49 of 2017 in
unnumbered OS.No. of 2017 on the file of Subordinate Court,
Ulundurpet is set aside on condition that the petitioner shall pay a sum
of Rs.5,000/- (Rupees Five Thousand only) as cost directly to the
respondent within a period of two weeks from the date of receipt of
copy of this order, failing which the order passed by this Court shall
stand automatically cancelled. On such payment of cost, the court
below is directed to dispose of the suit within a period of six months
thereafter. Consequently, connected miscellaneous petition is closed.
No order as to costs.
28.07.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
To
The Subordinate Judge,
Ulundurpet.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.2168 of 2018
G.K.ILANTHIRAIYAN,J.
lok
CRP.NPD.No.2168 of 2018
28.07.2021
https://www.mhc.tn.gov.in/judis/
