Madras High Court
Suryakumari vs N.Chelladurai @ N.S.Durai on 2 December, 2022
C.R.P(MD)No.1607 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.R.P(MD)No.1607 of 2022
and
CMP(MD)No.6967 of 2022
Durairaj (died)
Pandiammal (died)
Lakshmi (died)
1.Suryakumari
2.Narayanan
3.Ramachandran
4.Senthamaraikannan ... Petitioners
Vs
N.Chelladurai @ N.S.Durai ... Respondent
PRAYER: Civil Revision Petition is filed under Article 227
of the Constitution of India, to set aside the docket order
dated 25.07.2022 in unnumbered E.A.No. of 2022 in E.P.No.
29 of 2013 in O.S.No.127 of 1997 on the file of the
District Munsif Court, Nilakottai.
For Petitioners : Mr.H.Arumugam
1/7
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C.R.P(MD)No.1607 of 2022
ORDER
This civil revision petition is filed as against the
fair and decreetal order passed by the learned District
Munsif Court, Nilakottai in unnumbered E.A.RP.NO.4883 of
2022 in E.P.No.127 of 1997 dated 25.07.2022.
2.The petitioners / judgment debtors in O.S.No.127 of
1997 filed the above unnumbered E.A in E.P.No.29 of 2013
under Section 47 of CPC to dismiss the execution petition
filed by the respondent in E.P.No.29 of 2013 in O.S.No.127
of 1997 on the ground that the decree in O.S.No.127 of 1997
dated 06.01.2000 is null and void. The trial Court returned
the papers that these petitioners / respondents 3 to 7 in
EP.No.29 of 2013 were remained ex-parte and therefore, the
petition is not maintainable. The same has been
re-presented by the petitioners that the said petition is
filed under Section 47 CPC as independent proceedings and
therefore, the petition is maintainable. Again it was
returned by the Court and aggrieved over the same, the
petitioner has preferred this civil revision petition.
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C.R.P(MD)No.1607 of 2022
3.The learned Counsel for the petitioners submits that
the petition was returned only on the ground that the
petitioners were remained ex-parte in the main execution
proceedings. Section 47 CPC is an independent application
and even without the execution petition, the petition under
Section 47 CPC is maintainable and there is no bar under
any law to entertain any application, even though the
judgment debtor remained ex-parte. The learned Counsel has
relied the judgment of this Court in M.S.Haja Rasool, Vs
Annadurai and others reported in ILR 1997 (2) Madras 1375
and submits that no petition can be returned without
numbering unless there is specific bar under the law.
4.The learned Counsel for the petitioner has also
relied on the judgment of this Court in S.Kamalam Vs
Rajamani reported in 2014 3 CTC 757 and submits that there
is no need to file any petition under Order 9 Rule 7 CPC to
set aside the ex-parte order and he can participate in the
proceedings. But if he wants to restore his claim, he
should file a petition to set aside the ex-parte order.
He also relied on the decision of the Hon'ble Supreme Court
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C.R.P(MD)No.1607 of 2022
in Sundar Dass Vs Ram Prakash reported in 1997 2 SCC 660
and 1994 1 SCC in support of his contention.
5.The sum and substance of the arguments of the learned
Counsel for the petitioners is that the decree passed in
O.S.NO.127 of 1997 is of nullity and it cannot be executed
and therefore, his application filed under Section 47 CPC
ought to have been entertained by the trial Court.
6.The petitioners are the judgment debtors.
Their father one Duraisamy has contested the suit in
O.S.No.127 of 1997 and suffered the decree. The issue
reached this Court, it was decreed in favour of the decree
holder in S.A.No.1250 of 2002 on 24.04.2012. The decree
holder has also filed the execution petition in the year
2013 and in the execution petition, the petitioners/
judgment debtors remained ex-parte and the petitioners have
not filed any application to set aside the ex-parte order
and the copy of the ex-parte order is also not enclosed in
this petition.
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C.R.P(MD)No.1607 of 2022
7.This application in unnumbered EA is filed in the
year 2022 that the decree passed in O.S.NO.127 of 1997 is
of nullity in view of the judgment and decree passed in
O.S.No.136 of 1994. The judgment and decree passed in
O.S.No.127 of 1997 has been confirmed by this Court in
second appeal in S.A.No.1250 of 2002 by judgment and decree
dated 24.04.2012. The petitioners have not placed the
judgment and decree passed in the above second appeal and
have not furnished the details, when they were set ex-parte
and the reasons for non filing of any application to set
aside the ex-prate decree. The petitioners are also
claiming to be the subsequent purchasers from the lessee
one Pandiyarajan.
8.Considering the facts and circumstances of the case
and the conduct of the parties, this Court is not inclined
to entertain this petition and accordingly this petition is
dismissed. No costs. Consequently connected miscellaneous
petition stands dismissed.
02.12.2022
dsk
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C.R.P(MD)No.1607 of 2022
To
The District Munsif,
Theni.
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C.R.P(MD)No.1607 of 2022
B.PUGALENDHI, J.
dsk
C.R.P(MD)No.1607 of 2022
02.12.2022
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