Madras High Court
K.Subramanian @ K.S.Mani vs C.Rajendran on 19 January, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:19.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
C.R.P(PD)(MD)NO.734 OF 2017
and
C.M.P(MD)Nos.3378 and 8440 of 2017
1.K.Subramanian @ K.S.Mani
2.K.Arumugam :Petitioners/Petitioners/Appellants
/Defendants
.vs.
N.Manickam(died)
C.Kunjan Chettiar(died)
1.C.Rajendran
2.C.Soundararajan
3.C.Edaganathan :Respondents 1 to 3/Respondents
3 to 5/Respondents 3 to 5/Plaintiffs
3 to 5
C.Nanmaitharuvar(died)
4.M.Chokkalingam
5.M.Subramani :Respondents 4 and 5/Respondents
7 and 8/Respondents 7 and 8/
Plaintiffs 7 and 8
6.K.Loganathan
1/7
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7.K.Chokkalingam
8.M.Shanmugapriyan
9.N.Balachandran
PRAYER: Civil Revision Petition filed under Section 227 of the
Constitution of India praying this Court to set aside the fair and
decretal order made in I.A.No.732 of 2016 in A.s.No.131 of 1999,
dated 3.12.2017 on the file of the VI Additional District Court,
Madurai.
For Petitioner :Mr.H.Arumugam
For Respondents :Mr.S.Devaraj
1 to 3 (No appearance)
For Respondents :Mr.G.Aravinthan
4 to 9 (No appearance)
ORDER
********
This Civil Revision Petition is filed seeking to set aside the fair
and decretal order made in I.A.No.732 of 2016 in A.S.No.131 of
1999, dated 3.12.2017, on the file of the VI Additional District
Court, Madurai.
2.The respondents have filed the suit as against the
Petitioners herein and others in O.S.No.410 of 1990 before the
District Munsif Court, Madurai Town to direct the defendants to
vacate and surrender the possession of the suit property to the
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plaintiffs without any let or hindrance. The suit was decreed.
Challenging the said decree and judgment, the Petitioners have filed
an appeal before the 6th Additional District Court, Madurai in
A.S.No.131 of 1999. During the pendency of the appeal suit, two of
the plaintiffs/respondents died. Therefore the appellants have filed
an application before the Lower Appellate Court in I.A.No.732 of
2016 to bring the legal heirs of the decreased trustees and the said
application was dismissed and challenging the same, the Petitioners
have filed the present Civil Revision Petition before this Court.
3.Heard the learned counsel for the Petitioners and perused
the materials placed before this Court. When the matter was taken
up for hearing on 11.01.2022, there was no representation for the
Petitioners and hence the matter was directed to be listed today.
Even today also, there is no representation on behalf of the
respondents either in person or through counsel.
4.The learned counsel for the Petitioners would submit that
during the pendency of the appeal suit and based on the decree and
judgement passed by the trial Court, the trustees have filed an
execution petition, in which, the legal heirs of the deceased
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trustees are brought on record and the Execution petition is
continuing. In otherwise, the trust properties and other properties
are also on record and hence, the other trustees have filed the suit.
However, the legal heirs of the deceased trustees also have
become trustees and therefore, no question of abatment would
arise. Since the other trustees are already on record in appeal and
even the legal heirs of the deceased trustees are also brought on
record in the E.P. Proceedings, the abatemnt would not arise and in
this regard, the learned counsel for the Petititioners would place
reliance on the judgements (1)(1975) 1 SCC 298 in the case of
Charan Singh and another .vs. Darshan Singh and others
(2)AIR 1979 Bombay 109 in the case of Sitabai Ramchandra
Jeltare and others .vs. Masjid Nurun Mohalla Jingerwadi
(3)AIR 1975 Rajasthan 194 in the case of Mishrilal and
others .vs. Jankinanda (4P(1979) 3 Supreme Court Cases
578 in the case of N.Jayaram Reddy and another .vs. Revenue
Divisional Officer and Land Acquisition Officer, Kurnool and
(5)1971(1) Supreme Court cases 265 in the case of Mahabar
Prasad .vs. Jage Ram and others.
5.Admittedly, the respondents 1 to 3 along with deceased
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trustees one Manickam and Kunjan Chettiar have filed the suit
against the Petitioners herein and others and the suit was decreed.
Challenging the said judgment and decree, the Petitioners have
filed an appeal before the 6th Additional District Court, Madurai and
during the pendency of the appeal, two of the trustees/the Plaintiffs
in the suit/respondents in the appeal died. Therefore, the
appellants as Petitioners have moved an application before the
lower appellate Court to bring the legal heirs of the deceased
trustees and even during the pendency of the appeal, based on the
decree and judgment in the suit, the Plaintiffs have filed an
Execution Petition. In that E.P., the legal heirs of the deceased
trustees have been brought on record and otherwise also, the other
trustees are in appeal suit and therefore the question of abatment
does not arise, as rightly stated by the learned counsel for the
Petitioners.
6.For the foregoing reasons, the order made in I.A.No.732 of
2016 in A.S.No.131 of 1999, dated 3.12.2017, on the file of the VI
Additional District Court, Madurai and the Civil Revision Petition is
allowed. The First Appellate Court is directed to implead the legal
heirs of the deceased trustees and proceed with the appeal on
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merits and in accordance with law. No costs. Consequently,
connected Miscellaneous Petitions are closed.
19.01.2022
Index:Yes/No
Internet:Yes/No
vsn
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
1.The 6th Additional District Judge,
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN,J.
vsn
0RDER MADE IN
C.R.P(PD)(MD)NO.734 OF 2017
and
C.M.P(MD)Nos.3378 and 8440 of 2017
19.01.2022
https://www.mhc.tn.gov.in/judis
