P.Kathiresan vs Kannammal
2023 Latest Caselaw 9480 Mad

Citation : 2023 Latest Caselaw 9480 Mad
Judgement Date : 2 August, 2023

Madras High Court

P.Kathiresan vs Kannammal on 2 August, 2023

                                                                                    CRP No.2844 of 2019



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 02.08.2023

                                                            CORAM:

                            THE HONOURABLE Mr. JUSTICE V.LAKSHMINARAYANAN

                                                    C.R.P.No.2844 of 2019
                                                  and CMP No.18618 of 2019

                   P.Kathiresan                                                      ... Petitioner
                                                               Vs

                   1.Kannammal
                   2.Sampurnam                                                      ... Respondents

                   PRAYER: Civil Revision Petition filed under Article 227 of the
                   Constitution of India against the fair and decreetal order dated 16.04.2019
                   made in I.A.No.517 of 2019 in O.S.No.31 of 2015 on the file of
                   Subordinate Judge, Sathyamangalam.
                                       For Petitioner      : Mr.G.Prabhakaran
                                                             for Mr.A.V.Arun

                                       For Respondents     : Mr.G.C.Nelson Britto
                                                             for Mr.C.E.Prathap

                                                          ORDER

O.S.No.31 of 2015 is a suit for Specific Performance. In the said

suit, the defendants were served, but, unfortunately, for them, they remained

https://www.mhc.tn.gov.in/judis CRP No.2844 of 2019

ex-parte. It resulted in passing of an ex-partee decree against them on

29.02.2016. On the basis of the ex-parte decree, E.P.No.121 of 2017 was

filed. On being served with Execution Petition, the parties have filed an

application to set aside the ex-parte decree together with a petition for

condonation of delay of 721 days.

2. In the said application, it was pleaded that the respondents were

suffering from viral fever. After receipt of the counter from the respondents

and after conducting a detailed enquiry, the learned trial Judge was pleased

to condone the delay being satisfied with the “sufficient cause” that has

been shown. To balance the interest of parties, the learned trial Judge had

imposed a cost of Rs.4,000/-.

3. Learned counsel appearing for the respondents would submit that

such cost has already been deposited before the trial Court.

4. Learned counsel for the revision petitioner would submit that

sufficient cause has not been shown and therefore, he has to invoke the

https://www.mhc.tn.gov.in/judis CRP No.2844 of 2019

principles laid down by the Supreme Court in Majji Sannemma alias

Sanyasirao vs Reddy Sridevi and Others 2021 SCC Online SC 1260.

5. I have gone through the said judgment of the Supreme Court. That

was a situation where the High Court had condoned the delay in exercising

of the powers conferred under Order 41 Rule 3-A of Civil Procedure Code.

By the time the party had come to High Court, they had already suffered a

decree and it was in those circumstances, the Supreme Court held that the

High Court was not justified in exercising discretion in favour of persons

who had lost the litigation and were lackadaisical in prosecuting the same.

That is not the situation here.

6. The trial Court had exercised its discretion and once a discretion is

so exercised, the Supreme Court in N.Balakrishnan vs M.Krishnamurthy

1998 7 SCC 123 has held that Court should not ordinarily interfere with

such exercise of discretionary powers. However, considering the fact that

the execution petition has been filed, I am inclined to increase the costs to

balance the scales, from Rs.4,000/- to Rs.10,000/-.

https://www.mhc.tn.gov.in/judis CRP No.2844 of 2019

7. Accordingly, the Civil Revision Petition is partly allowed with the

following conditions:

(i) that the respondents shall pay the

petitioner Rs.6,000/-(Rupees Six thousand

only) within a period of four weeks from

today;

(ii) On payment of Rs.6,000/-(Rupees Six

thousand only), the Court below is requested

to take up the application filed under Order 9

Rule 13 of Civil Procedure Code and allow

the same;