Madras High Court
S.Amarnath vs A.V.Vijayaragavan on 18 November, 2021
C.R.P.(NPD) (MD) No.892 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.892 of 2021
and
C.M.P.(MD) No.4968 of 2021
1.S.Amarnath
2.A.Vishalatshi
3.S.Sethulakshmi .. Petitioners
-vs-
A.V.Vijayaragavan .. Respondent
Prayer :- Petition filed under Section 115 of Code of Civil Procedure
against the fair and ex-order dated 16.03.2021 made in I.A.No.2 of 2012
in A.S.No.------ of 2012 on the file of the Principal District Judge, Theni.
For Petitioners : Mr.K.Hemakarthikeyan
For Respondent : No appearance
*******
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C.R.P.(NPD) (MD) No.892 of 2021
ORDER
The revision petitioners are before this Court challenging the order
dated 16.03.2021 in I.A.No.2 of 2012 in A.S.No.----- of 2012 passed by
the Principal District Judge, Theni dismissing their application filed to
condone the delay of 2031 days in filing the appeal.
2.The facts in brief are as follows:-
2.1.The respondent has filed the suit in O.S.No.67 of 2004 on the
file of the Subordinate Judge, Peiyakulam for a preliminary decree of
mortgage against the 3rd defendant for a sum of Rs.1,25,000/- and failing
payment of the said sum of Rs.1,25,000/-, pass a final decree in favour of
the plaintiff by putting the property to court sale.
2.2.It was the case of the plaintiff that the 1st defendant had
borrowed a sum of Rs.1,25,000/- from the respondent promising to repay
the said amount together with interest at the rate of 12% per annum for
which he had executed a promissory note. The 3rd defendant is the
mother-in-law of the 1st defendant and the 2nd defendant is the wife of the
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C.R.P.(NPD) (MD) No.892 of 2021
1st defendant. Since the 1st defendant had not adhered to the repayment
as agreed, the 2nd defendant on 06.02.2003 had given an undertaking that
she will pay a sum of Rs.85,000/- and the balance will be paid within one
month and the 3rd defendant on 19.07.2003 had given a memorandum of
mortgage by way of deposit of title deeds. Despite the above, the 1 st
defendant had not cleared his outstanding and therefore, the respondent
had come forward with the suit in question.
3.The defendants had filed a written statement inter alia
contending that the 1st defendant had only borrowed a sum of Rs.30,000/-
on 16.05.1998 for which, he had executed a blank promissory note and
that the entire loan had been settled within a period of four months. This
blank promissory note has been manipulated to create the suit promissory
note.
4.It was the case of the defendants that the plaintiff, who was a
lawyer by profession, had appeared on their behalf in a suit for partition
in O.S.No.417 of 1992. While appearing on behalf of the defendants, the
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C.R.P.(NPD) (MD) No.892 of 2021
plaintiff was handed over the documents of title. The suit for partition
was compromised amongst the parties and the plaintiff had returned the
documents relating to the other properties, but not with reference to the
suit properties.
5.They would further contend that defendants 2 and 3 had not
executed any documents in favour of the plaintiff. In short, they had
denied the claim of the plaintiff. Ultimately, by judgment and decree
dated 24.03.2006, the suit was decreed as prayed for.
6.Thereafter, the plaintiff had filed I.A.No.172 of 2006 on the file
of the Sub Court, Periyakulam for a final decree. In this proceedings, the
mortgaged properties, or such part as is required to satisfy the decree,
were directed to be sold and amount realised was to be deposited into the
Court. Pursuant to the final decree proceedings, the plaintiff had filed
E.P.No.23 of 2008 on the file of the Sub Court, Periyakulam, which was
taken on file on 14.02.2008 and notice was sent to petitioners 2 and 3
herein on 12.11.2009. This execution proceedings were thereafter
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C.R.P.(NPD) (MD) No.892 of 2021
transferred to the file of the Sub Court, Theni and renumbered as E.P.No.
148 of 2008. Pending this execution proceedings, a claim petition was
filed by one Devi, who was a third party in E.A.No.136 of 2009 under
Section 47 and Section 151 of the Code of Civil Procedure. In her
petition, the said Devi had contended that she had purchased the property
from the 3rd defendant for a valuable consideration under an unregistered
Sale Agreement dated 25.11.2002 for which she had paid an advance of
Rs.56,000/- and thereafter, on 25.02.2006, the Sale Deed was registered
in her favour. It transpires that Devi is the close relative of the
defendants and the entire transaction was done through sham documents.
She had also filed an application invoking the provisions of Order 21
Rule 106 Civil Procedure Code in E.A.No.204 of 2011. Therefore, the
plaintiff sought to have the petition dismissed as the reasons given for
condoning the delay were absolutely false, since the
petitioners/defendants were fully aware about the proceedings. The
learned Principal District Judge, Theni by her order dated 16.03.2021
was pleased to dismiss the said application stating that the contentions
raised in the petition for condoning the delay were absolutely false and
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C.R.P.(NPD) (MD) No.892 of 2021
far from the truth. Challenging the same, the revision petitioners are
before this Court.
7.Learned counsel appearing for the petitioners would contend that
the petitioners herein had filed documents to show that during the
relevant period when the decree was passed, they were residing at
Chennai and had not received the notice. He would submit that the
learned Judge had also not considered the fact that the 3rd defendant had
died on 01.08.2006 pending final decree proceedings in I.A.No.172 of
2006.
8.The respondent though served has not entered appearance
through counsel.
9.Heard the learned counsel for the petitioners and perused the
records.
10.The learned Principal District Judge, Theni has considered the
documents filed on the side of the petitioners to prove their contention
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C.R.P.(NPD) (MD) No.892 of 2021
that they were unaware about the proceedings and had come to the
conclusion that the documents does not by any stretch of imagination
prove the case of the petitioners that they were not available at the
address for service at the given point of time. The documents
particularly Ex.P1 would show that Sethulakshmi and Seethalakshmi
were very much living in Bodinayakkanur during the year 2005 to 2009
and that though in the affidavit it is stated that the 3 rd petitioner had been
settled at Chennai during the year 2006, they had shifted back to
Bodinayakkanur during 2011. The final decree proceedings had been
initiated in the year 2004 and the decree was passed in 2006. Therefore,
at the relevant point of time, the parties, particularly the 1st petitioner and
the 3rd petitioner were very much available at the given address. That
apart, the sale of the mortgaged property by the deceased 3rd defendant in
favour of the claimant in E.A.No.136 of 2009 had taken place in the year
2006. The learned Judge has rightly held the same to be a sham and
nominal sale, considering the fact that the petitioners have set up a Sale
Agreement dated 25.11.2002 for which a Sale Deed had been executed
only on 25.02.2006. An unregistered sale agreement is executed as if the
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C.R.P.(NPD) (MD) No.892 of 2021
same was entered into prior to the filing of the suit. The finding of the
learned Principal District Judge, Theni clearly shows that the defendants
have not come to court with clean hands. The learned Judge has rightly
dismissed the application and I do not find any reasons to set aside the
same. Consequently, the Civil Revision Petition stands dismissed. No
costs. Connected miscellaneous petition is closed.
18.11.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The Principal District Court, Theni.
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C.R.P.(NPD) (MD) No.892 of 2021
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.892 of 2021
Dated: 18.11.2021
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