Madras High Court
A.Mylsamy vs Deivasigamani Gounder on 3 March, 2021
C.R.P.Nos.399 & 400 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 03.03.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P. (NPD) Nos.399 & 400 of 2021
and
C.M.P.No.3424 of 2021
A.Mylsamy ...Petitioner in both cases
Vs
Deivasigamani Gounder ...Respondent in both cases
PRAYER: Civil Revision Petition filed under Section 115 of Code of
Civil Procedures to set aside the fair and final order passed by the learned
District Munsif Court, Pollachi, Coimbatore District in E.A.Nos.1 & 2 of
2019 in E.P.No.4 of 2018 in O.S.No.23 of 2004 dated 21.01.2021.
For Petitioner : Mr.G.Ponnambalathiyagarajan
(in both cases)
ORDER
While CRP No.399 of 2021 has been filed against the order dated
21.01.2021 made in E.A.No.1 of 2019 in E.P.No.4 of 2018 in O.S.No.23
of 2004, passed by the District Munsif Court, Pollachi, Coimbatore, in
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C.R.P.Nos.399 & 400 of 2021
and by which the prayer of the petitioner for reopening the case has been
dismissed, CRP No.400 of 2021 has been filed against the order dated
21.01.2021 made in E.A.No.2 of 2019 in E.P.No.4 of 2018 in O.S.No.23
of 2004, in and by which the prayer of the petitioner for condoning the
delay in filing the additional written statement has been dismissed.
2. The said petitions were filed after A.S. No.15 of 2010 was
allowed in favour of the respondent herein relating to allotment of shares
in the property. After the judgment in A.S.No.15 of 2010, execution
petition in E.P. No.4 of 2018 was filed by the respondent herein in
relation to his share of the property. I.A.No.1023 of 2010 in O.S. No.23
of 2004 was filed for the appointment of Advocate Commissioner to
cause inspection of the scheduled mentioned properties and to submit a
report. The Advocate Commissioner, so appointed, had inspected the
property and submitted his report based on which execution petition,
above mentioned has been filed. However, the present application has
been filed by the petitioner herein before the trial court on the ground that
though the petitioner is taking steps for filing second appeal before the
High Court, however, in the meantime, Advocate Commissioner was
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C.R.P.Nos.399 & 400 of 2021
appointed and the report of the Advocate Commissioner does not clearly
state many revealing facts pertaining to pathway, etc., which came to the
knowledge of the petitioner herein only later to his filing the written
statement of defence, which prompted the petitioner herein to file the
present petitions before the execution court.
3. The said petitions were resisted by the respondent herein that
inspite of passing of judgment in A.S. No.15 of 10, though it is submitted
that the petitioner is taking steps to file second appeal, however, no
materials whatsoever has been placed before the Court to substantiate the
said contention and the present petitions have been filed only to defeat the
legitimate rights of the respondent herein and to drag on the proceedings.
Though the report submitted by the Advocate Commissioner has been
submitted long back, however, to scuttle the legitimate rights of the
respondent herein to his share in the scheduled mentioned properties, the
present petitions have been filed and, therefore, prayer was made for
rejection of the said petitions.
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C.R.P.Nos.399 & 400 of 2021
4. The Court below, on consideration of the submissions of either
side and on perusal of the materials on record, the court below held that
though judgment was passed in the suit as early as on 10.11.2009 and
order in I.A. No.1023 of 10 for appointment of Advocate Commissioner
has also been passed on 01.08.2013, however, the petitioner had not
raised any objections to the report of the Advocate Commissioner and
has, through the present petitions, come before this Court belatedly, that
too after a period of six years, which cannot be permitted and,
accordingly, dismissed the petitions, against which the present revisions
have been preferred.
5. Grounds, as was raised before the court below, have been raised
before this Court, by the learned counsel appearing for the revision
petitioner. It is the submission of the learned counsel for the revision
petitioner that many of the discrepancies in the report of the Advocate
Commissioner came to the knowledge of the revision petitioner only at a
belated point of time, which caused the petitioner to move the present
petitions before the court below and the delay is not wilful or wanton and
not to drag the proceedings. It is submitted that this Court may afford
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C.R.P.Nos.399 & 400 of 2021
one opportunity to the petitioner to put forth his case by allowing these
petitions.
6. Heard the learned counsel appearing for the petitioner and
perused the materials available on record as also the order passed by the
court below.
7. A perusal of the order passed by the court below clearly reveals
that though judgment was passed in the suit as early as on 10.11.2009
and order in I.A. No.1023 of 10 for appointment of Advocate
Commissioner has also been passed on 01.08.2013, however, the
petitioner had not raised any objections to the report of the Advocate
Commissioner. Further, the appeal preferred against the said suit has also
ended against the petitioner on 13.07.2011, whereinafter, the Advocate
Commissioner was appointed in the interim application and order came to
be passed in the year 2013. Though seven years have passed from the
said date, it is contended by the petitioner that he is preferring appeal
against the appellate order, however, no material whatsoever has been
placed to substantiate the said stand. Further, after a delay of almost six
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C.R.P.Nos.399 & 400 of 2021
years, the present petitions have been filed before the court below for the
relief stated therein, by pleading ignorance, which cannot be allowed, as
allowing such a plea would amount to defeating the rights of the
respondent herein, as he had obtained favourable orders almost a decade
back and is yet to enjoy the fruits of the said order. The court below, has
rightly dismissed both the petitions and this Court, sitting in revision, is
not inclined to interfere with the said order passed by the court below.
8. For the reasons aforesaid, both the civil revision petitions are
dismissed. Consequently, connected miscellaneous petitions are closed.
There shall be no order as to costs.
03.03.2021
Index:Yes/No
Speaking order/Non-Speaking Order
sbn
To
The District Munsif Court,
Pollachi, Coimbatore.
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C.R.P.Nos.399 & 400 of 2021
V.BHAVANI SUBBAROYAN, J.
sbn
C.R.P. (NPD) Nos.399 & 400 of 2021
and
C.M.P.No.3424 of 2021
03.03.2021
http://www.judis.nic.in
