Madras High Court
Rajendran vs Kumaraswamy on 21 June, 2022
C.R.P.(NPD).No.1675 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.06.2022
CORAM
THE HONOURABLE Mrs. JUSTICE S.KANNAMMAL
Civil Revision Petition No.1675 of 2020
Rajendran .. Petitioner
Versus
1.Kumaraswamy
Ramasamy Gounder (died)
2.Vellingiri
3.Devayal
4.Saraswathi .. Respondents
Civil Revision Petition is filed against the fair and decreetal order
passed in I.A.No.235 of 2018 in unnumbered A.S. in C.F.R.No.10483 of
2018 by the learned Principal District Judge, Erode dated 03.03.2020.
For Petitioner .. Mr.S.Parthasarathy
For R1 .. Mr.R.Shase
ORDER
The present Civil Revision Petition has been filed by the petitioner,
who claims to have purchased the property from the judgment debtor in
O.S.No.61 of 2000 on the file of Subordinate Court, Gobichetti Palayam.
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2. The suit in O.S.No.61 of 2000 was filed by Kumaraswamy,
the 1st respondent herein against the respondents 2 and 3 herein for
recovery of money. Even during the pendency of the suit, he has filed an
application to attach the properties of the defendants, before judgment.
Subsequently, the suit itself was decreed in favour of the plaintiff/1st
respondent herein. The plaintiff has also filed execution petition to bring
the property for sale to realize the fruits of the decree. Accordingly, the
property was brought into Court auction in which the plaintiff/first
respondent herein himself has purchased the property. A sale deed also
appears to have been executed in favour of the plaintiff by the learned
Subordinate Court, Gobichetti Palayam.
3. At this stage, the appellant herein claiming himself to have
purchased the property by a sale deed dated 10.01.2000 from the
defendants in the suit, has filed an application to raise the order of
attachment and it was dismissed on 21.08.2006. It is stated that the
appellant had instructed his counsel to prefer an appeal and he was under
the bonafide impression that an appeal in fact was filed before the
appellate Court. However, only on 22.11.2018 i.e., nearly after 14 years
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C.R.P.(NPD).No.1675 of 2020
when the plaintiff came to the suit property for taking measurement he
realised his folly and filed the application in I.A.No.235 of 2018 in
unnumbered A.S. in C.F.R.No.10483 of 2018 seeking to condone the
delay of 4457 days in filing the appeal.
4. On notice, the plaintiff resisted the application for
condonation of the delay by filing a counter. According to the plaintiff,
on 14.12.2008, the property in question was delivered to him and the
same was also recorded by the learned Subordinate Judge,
Sathiyamangalam in E.A.No.6 of 2012. When the entire execution
proceedings have come to an end, the present application has been filed
with a delay of 4403 days. It is also stated that the delay was deliberate,
wilful and intentional and it should not be condoned.
5. The learned Principal District Judge, on consideration of the
arguments put forth by the counsel for both sides and also the oral
evidence of the appellant herein as P.W.1 and the plaintiff, as R.W.1,
Ex.R1-certified copy of the possession certificate issued to the plaintiff,
has concluded that the appellant herein has not approached the Court
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C.R.P.(NPD).No.1675 of 2020
with clean hands. The delay of 4403 days is wilful and deliberate and
there is no sufficient cause shown by the appellant for condonation of
such inordinate delay. Accordingly, the learned Principal District Judge,
Erode dismissed the application filed by the appellant herein.
6. Heard the learned counsel for both sides and perused the
materials available on record.
7. This is a case where the appellant has filed the instant
application for condonation of delay of 4403 days in filing the appeal
against the execution proceedings. The appellant claims himself to have
purchased a portion of the property, which is the subject matter of
execution proceedings, by a sale deed dated 10.01.2000. According to
him, after he purchased the property on 19.04.2000, the property was
subjected to attachment. As regards the knowledge with respect to the
present suit as well as the execution proceedings initiated by the plaintiff.
It is stated that the appellant has filed an application along with others
for lifting the attachment of the property. However, it was dismissed by
the trial Court on 21.08.2006. The appellant very callously has stated that
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C.R.P.(NPD).No.1675 of 2020
as against the order dated 21.08.2006, he has instructed his counsel to file
an appeal and he was under the impression that an appeal was filed by his
counsel. This piece of averment of the appellant shows that he is not
diligent enough in perusing the appeal remedy.
8. First of all, an appeal itself has not been filed by the
appellant. If really an appeal was filed by the counsel, he should have
signed the vakalat and other appeal memorandum and followed it up with
his counsel. Even without doing so, a casual averment was made by the
appellant as if he was under the impression that an appeal was filed. The
appellant also by virtue of such averment indirectly blamed a counsel for
not having filed an appeal. In fact, the appellant himself has stated that
several persons, who are affected by the order of attachment, have
approached the counsel and those persons have filed an appeal. In fact,
one Palanisami and another have filed the appeals through their counsel.
However, the appellant and one Subramani did not prefer an appeal. If it
is so, the appellant himself has to be blamed. The appellant has not taken
any efforts to ensure that whether an appeal has been filed in the year
2006 or not. The appellant has gone into deep slumber and suddenly
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C.R.P.(NPD).No.1675 of 2020
woken up in the year 2018 when the property said to have been
purchased by him was subjected to measurement by the decree holder.
Thus, atleast for 14 years the appellant did not take any steps to file the
appeal. Even in the interregnum the appellant had not contacted his
counsel to ascertain as to the stage of the appeal. All these facts would
only to go to show that the appellant was not diligent in pursuing the
appeal remedy.
9. It is well settled that length of delay is not a criteria but the
reasons assigned thereof. In condoning the delay, the Court must be
liberal to ensure that doors of justice are not shut against a litigant. At the
same time, the Court has to weigh the diligent efforts made by a litigant
and if such efforts were made genuinely, precisely and continuously, then
the Court can grant relief in favour of such litigant. But none of the above
parameters can be extended in favour of the appellant in this appeal. The
appellant having purchased the property and claiming himself to be in
possession of the property has not taken any steps from 2006 till 2018 to
ensure whether any appeal has been filed by the counsel or it was
numbered and what was the stage of the appeal. Therefore, there is
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C.R.P.(NPD).No.1675 of 2020
absolute slackness on the part of the appellant in pursuing his appeal
remedy. While so, the discretion conferred upon this Court to condone
delay cannot be exercised in the present case where the appellant is not
justified in filing the instant application for condonation of inordinate
delay of 4403 days in filing the appeal. The appellate Court also on
careful consideration of the oral and documentary evidence made
available has refused to condone the delay. I do not find any reason to
upset such a findings rendered by the appellate Court.
10. In the result, the order dated 03.03.2020 passed in
I.A.No.235 of 2018 in unnumbered A.S. in C.F.R.No.10483 of 2018 on
the file of the learned Principal District Judge, Erode, stands confirmed.
No Costs.
21.06.2022
gbi
To
The Principal District Judge,
Erode.
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C.R.P.(NPD).No.1675 of 2020
S.KANNAMMAL, J.
gbi
C.R.P.No.1675 of 2020
21.06.2022
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