Madras High Court
George vs Selvi :First on 17 August, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
C.M.A(MD)No.788 of 2022
and
C.M.P(MD)No.7170 of 2022
George :Appellant/Petitioner/
Third Respondent/Third Defendant
.vs.
1.Selvi :First Respondent/First Respondent/
Petitioner/Plaintiff
2.Lalitha(died)
3.Sarbie Soorial
4.Sharlet
5.Belsy Soorial :Respondents 3 to 5/Respondents
3 to 5/Respondents 2,4 and 5/
Defendants 2,4 and 5
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of
Civil Procedure Code against the fair order and decretal order made
in E.A.No.4 of 2022 in E.P.No.18 of 2020 in O.S.No.429 of 2010,
dated 23.3.2022, on the file of the Principal District Munsif,
Kuzhithurai.
For Appellant :Mr.M.R.Sreenivasan
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JUDGMENT
*********
This Civil Miscellaneous Appeal is directed againt the fair and
decretal order made in E.A.No.4 of 2022 in E.P.No.18 of 2020 in
O.S.No.429 of 2010, dated 23.3.2022, on the file of the Principal
District Munsif, Kuzhithurai.
2.The appellant is the third defendant in the suit in O.S.No.
429 of 2010, on the file of the Principal District Munsif,
Kuzhithurai.The first respondent herein filed the suit in O.S.No.429
of 2010 for declaration. The suit was decreed. Challenging the
same, the appellant filed an appeal and he lost in the appeal.
Subsequently, the respondent/decree-holder filed execution Petition
in E.P.No.18 of 2020, on the file of Principal District Munsif,
Kuzhithurai. In the E.P, notice was served to the appellant and
subsequently he did not participate in the execution proceedings
and hence an exparte order was passed against the appellant.
Therefore, the appellant filed E.A.No.4 of 2022 before the
Execution Court to set aside the exparte order, for which, there was
a delay of 326 days and that petition was dismissed by the
Execution Court. Now challenging the said order, the appellant has
filed the present Civil Miscellaneous Appeal before this Court.
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3.The learned counsel for the appellant would submit that the
respondent got a decree in O.S.No.429 of 2010 for an extent of 17
cents within specific boundaries mentioned in the decree, though
he filed E.P before the Execution Court, however he is in
apprehension that his residential house would be disturbed, which
is adjacent to the petition mentioned property. He has further
apprehended that his house will be disturbed at the time when
taking delivery of the property and hence, his presence is
necessary at the time of taking delivery of the property. If the delay
is not condoned and exparte order in the E.P is not set aside, he
will be put to great prejudice and hardship.
4.Heard the learned counsel appearing for the appellant and
perused the materials placed before this Court.
5.Admittedly, the first respondent herein filed the suit in
O.s.No.429 of 2010 for declaration and got decree in his favour.
Though the appellant herein challenged the decree passed by the
trial Court upto this Court, he lost in the same and the E.P filed by
the respondent is pending. Though this appellant is arrayed as third
defendant in the suit and third respondent in the E.P, initially he
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appeared through counsel and subsequently he did not
appear.Therefore, there is an exparte order as against the appellant
passed by the Executing Court and he filed a petition to set aside
the exparte order with a delay of 326 days and that petition was
dismissed.It is settled proposition of law that condoning the delay is
the discretionary power of the Court and while deciding the petition
to condone the delay, the Court has to exercise its discretionary
power judicially and normally, this Court will not interfere with the
same, unless this Court finds any arbitrariness or mala fide in the
order of the Court below.
6.A reading of the entire order passed by the Court below in
E.A.No.4 of 2022 does not find any reason to interfere with the
same. However, since the appellant herein lost his battle upto this
Court and that E.P has been filed to take delivery of 17 cents, for
which, a decree was obtained by the decree-holder, the
apprehension expressed by the appellant is without any substance.
The attitude of the appellant clearly shows that it is only to delay
the execution proceedings and that the appellant has purposefully
evaded from the E.P proceedings, for which, he has filed a petition
to set aside the exparte order, that too, with a delay of nearly one
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year. The reasons stated in the affidavit filed in support of the
condone delay petition is not satisfactory. Therefore this Court does
not find any perversity in the order of the Court below and the
appeal is liable to be dismissed.
7.Since the appellant is the adjacent owner of the decretal
portion and at the time of taking delivery, the Amin of the Court
below should ensure the presence of the appellant herein and the
delivery has been effected in the presence of the appellant. The
appellant is directed to participate at the time when the Amin of the
Court below is taking delivery of the said property. The Court below
is directed to ensure the presence of the appelalnt herein and give
him an opportunity to be present at the time of taking delivery in
the execution proceedings. The Court below should ensure while
recording delivery that the Court Official has given an opportunity
to the appellant for being present at the time of taking delivery of
the said property.
8.With these directions, the Civil Miscellaneous Appeal is
dismissed. No costs.Consequently, connected Miscellaneous Petition
is dismissed.
17.08.2022
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Index:Yes/No
Internet:Yes/No
vsn
To
1.The Principal District Munsif,
Kuzhithurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.788 of 2022
and
C.M.P(MD)No.7170 of 2022
17.08.2022
https://www.mhc.tn.gov.in/judis
