Madras High Court
Periyakaruppan vs Kandavelu on 8 March, 2021
C.R.P.(MD)No.2009 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.03.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(MD)No.2009 of 2019
and
C.M.P.(MD)No.10345 of 2019
Mayalagan (Died)
1.Periyakaruppan
Raja @ Madarasan (Died)
Veeran (Died)
2.Govindan
3. Anguthan
Nalli (Died)
4. Parathaman
5. Narayanan
6. Pitchammal
7. Parameshwari
8. Minor Karunagaran
9. Minor Nallamani
10. Minor Abinaya
11. Minor Nagarajan ...Petitioners/Respondents/
Defendants
(Minor petitioners 8 to 11
represented by their mother and
natural guardian 7th petitioner)
vs.
K.Palanichamy (Died)
1. Kandavelu
2. Kadarnath
3. Shanmugam
4. Thirugnansmbantham ... Respondents/Petitioners/
Legal Heirs of Plaintiff
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C.R.P.(MD)No.2009 of 2019
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 20.08.2019 made in
Execution Petition in E.P.No.162 of 2015 in O.S.No.1157 of 2000 on the
file of Principal District Munsif Court, Madurai Town.
For Petitioners : Mr.R.Krishnan
For Respondents : Mr.M.Kannan
ORDER
This revision petition has been filed to set aside the order dated
20.08.2019 made in Execution Petition in E.P.No.162 of 2015 in O.S.No.
1157 of 2000 on the file of Principal District Munsif Court, Madurai
Town.
2.The deceased respondent/plaintiff K.Palanichamy filed O.S.No.
1157 of 2000 against the revision petitioners/defendants for declaration,
mandatory injunction and recovery of possession. The suit was
dismissed by judgment and decree dated 20.11.2006 and challenging the
same, the plaintiff filed A.S.No.17 of 2007 which was allowed, against
which, the petitioners preferred S.A(MD).No.153 of 2014 before this
Court and it was dismissed for default. Thereafter, the respondents/legal
heirs of the deceased plaintiff K.Palanichamy, filed E.P.No.162 of 2015
and the same was allowed by impugned order dated 20.08.2019, against
which, the petitioners/defendants have filed the present revision petition.
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C.R.P.(MD)No.2009 of 2019
3.The learned counsel appearing for the petitioners would state
that the Executing Court ought to have seen that the dismissal of
S.A(MD)No.153 of 2014 was not on merits and it was only for default
and the petitioners herein are taking effective steps to file necessary
application to restore the Second Appeal. He would further state that the
deceased respondent/plaintiff had six legal heirs who were parties in the
second appeal, but only 4 legal heirs had filed the E.P and therefore, the
E.P has to be returned for non joinder of necessary parties. Thus, he
would pray to set aside the impugned order.
4.Heard the learned counsel appearing for the petitioners as well as
the respondents.
5.Perusal of record in S.A(MD)No.153 of 2014 shows that the said
second appeal was admitted on 07.02.2014 and a notice was ordered
returnable by four weeks and interim order was granted till then. The
Court notice sent to the sole respondent/plaintiff returned with an
endorsement that the respondent expired. Thereafter, this Court by order
dated 20.08.2015, directed the appellant to implead the legal heirs of the
respondent. The appellant took steps in M.P(MD)SR.Nos.35269 and
35270 of 2014 to condone the delay of 126 days in filing the petition to
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C.R.P.(MD)No.2009 of 2019
bring the legal representatives of the deceased respondent on record and
to implead the legal heirs of the sole respondent respectively. The said
petitions were returned for certain compliance granting 10 days time to
comply with the defects, but the above return was neither complied with
nor the appellant took steps for compliance, inspite of the intimation
notice for such returns put up in the Registry's notice board more than
twice and therefore, it was posted before the Court for passing orders on
21.03.2016 under the caption 'Appeal Examiners Section Default Cases'
and by order dated 21.03.2016, time was granted upto 05.04.2016 for
taking steps in M.P(MD)SR.Nos.35269 and 35270 of 2014, in default, it
has been stated that the said petitions will be rejected automatically and
struck off from the file of this Court. As steps were not taken,
M.P(MD)SR.Nos.35269 and 35270 of 2014 were rejected as per the
order dated 20.08.2015 and the second appeal also got dismissed. On
14.09.2018, the appellant came forward with the petition in C.M.P.No.
9036/2018 to condone the delay of 1088 days in filing the restoration
petition to restore the second appeal and this Court by an order dated
11.12.2018 dismissed the condone delay petition by passing a very
detailed order and therefore, as of now no second appeal is pending. At
this stage, the respondents have filed E.P.No.162 of 2015 and the E.P has
been ordered. The learned counsel for the petitioners would state that the
sole respondent had six legal heirs who were parties in the second
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C.R.P.(MD)No.2009 of 2019
appeal, but only 4 legal heirs had filed the E.P and therefore, the E.P has
to be returned for non joinder of necessary parties, but here in the present
case, the respondents have stated that the legal heirs were impleaded as
per the order of this Court in I.A.No.220/2015 by virtue of a will
executed by the decree holder dated 09.07.2010. Admittedly, the revision
petitioners did not file any appeal against the order in I.A.No.220/2015
and the said order has become final. The other two legal heirs did not get
any share as per the will. The petitioner has not taken any effective steps
to prosecute the matter and now they come forward with the present
revision petition which is only a clear abuse of process of the court and
therefore, the order of the learned Judge does not warrant any
interference.
6.Accordingly, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
08.03.2021
bala/pkn
To
The Principal District Munsif,
Madurai Town.
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C.R.P.(MD)No.2009 of 2019
J.NISHA BANU, J.
bala/pkn
ORDER MADE IN
C.R.P.(MD)No.2009 of 2019
DATED : 08.03.2021
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