Madras High Court
Krishnan vs Parasuraman on 3 January, 2023
C.R.P.No.4038 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.No.4038 of 2017
and C.M.P.No.18878 of 2017
Krishnan ... Petitioner
Vs.
1. Parasuraman
2. Perumal
3. Jaisankar ... Respondents
Prayer :- Civil Revision Petition is filed under Section 115 of C.P.C., to set
aside the order passed in I.A.No.1082 of 2015 in O.S.No.117 of 2012 dated
28.08.2017 on the file of the Additional District Munsif Court, Cheyyar,
Thiruvannamalai District.
For Petitioner : Mr.K.G.Senthil Kumar
For Respondents : Mr.S.Makesh
Page 1 of 8
https://www.mhc.tn.gov.in/judis
C.R.P.No.4038 of 2017
ORDER
This Civil Revision Petition has been filed as against the fair
and decreetal order dated 28.08.2017 passed in I.A.No.1082 of 2015 in
O.S.No.117 of 2012 dated 28.08.2017 on the file of the learned Additional
District Munsif, Cheyyar, Thiruvannamalai District, thereby dismissing the
petition seeking condone the delay in filing the petition to set aside the
exparte decree.
2. The respondents are the plaintiffs and the petitioner is the
defendant. The respondents filed suit in O.S.No.117 of 2012 for specific
performance. After filing the written statement by the petitioner, P.W.1 was
examined. When the matter was posted for cross-examination of P.W.1, the
petitioner failed to cross-examine P.W.1 even after giving so many
opportunities. Therefore, he was set exparte and exparte decree was passed
on 17.10.2014. Thereafter, the petitioner did not take any steps to set aside
exparte decree and to restore the suit.
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C.R.P.No.4038 of 2017
3. In pursuant to the decree dated 17.10.2014 passed in
O.S.No.177 of 2012, the respondents filed the execution petition in
E.P.No.40 of 2015. In the execution petition, the petitioner was duly served
with notice. On receipt of the notice, the petitioner engaged Advocate and he
entered appearance on 08.07.2015, before the execution Court. In the
execution petition, he was given opportunities to file counter. Even then, the
petitioner did not file any counter and he was set exparte 25.09.2015. In the
execution petition, the petitioner filed petition to set aside the exparte decree
in O.E.A.No.94 of 2015 and the same was also dismissed by an order dated
05.09.2017. However, it was not challenged by the petitioner before any
Court of law.
4. In the meanwhile, the petitioner also filed petition in
I.A.No.1082 of 2015 to condone the delay of 57 days in filing the petition to
set aside the exparte decree in the suit in O.S.No.117 of 2012. It was
returned for certain compliance and again it was again re-presented with the
delay of 100 days. It was allowed and the condone delay petition was taken
for enquiry. During the enquiry, the petitioner failed to explain the proper
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C.R.P.No.4038 of 2017
reasons for 57 days in filing the petition to set aside the exparte order. It is
pertinent to note that in the execution petition, the petitioner was duly served
with notice and in fact, he entered appearance before the execution Court on
08.07.2015. Though the petitioner filed petition to set aside the exparte
decree in suit in O.S.No.117 of 2012, he failed to pursue the said
application.
5. It is also seen that the petitioner appeared in the execution
application and sought for time for filing the Court. However, he failed to
file any counter in the execution Court. The condone delay petition to
condone the delay in filing the petition to set aside the exparte decree was
returned on 30.04.2016. Further it was re-presented with the delay of 100
days in re-presenting the petition to condone the delay in filing the petition
to set aside the exparte decree.
6. On a perusal of the affidavit revealed that the petitioner was
suffered with jaundice and as such he could not met his counsel to give
proper instructions to file a petition to set aside the exparte decree
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C.R.P.No.4038 of 2017
immediately. However, he had engaged the Advocate to appear before the
execution Court and he contested the execution petition by seeking time to
file counter. Therefore, the trial Court dismissed the condone delay petition
as against which the present Civil Revision Petition.
7. The learned counsel appearing for the petitioner submitted that
under Section 144 of C.P.C., the petitioner is entitled the relief of restitution
of property and he may be given one more opportunity to contest the suit. In
this regard, he relied upon the judgment reported in AIR 2004 MADRAS
425 in the case of Kandan and ors Vs. Periaswamy, in which this Court
held that the provision under Section 144 of C.P.C., contemplates that where
a property was received by a decree holder in execution of a decree which,
on appeal, either in whole or in part thereof, is subsequently reversed or
varied, the Court is empowered to restore to the judgement debtor what has
been lost to him in execution of the decree and it is the consequence of the
erroneous decree. Therefore, he prayed to allow this Civil Revision Petition.
8. Heard Mr.K.G.Senthil Kumar, learned counsel appearing for
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C.R.P.No.4038 of 2017
the petitioner and Mr.S.Makesh, learned counsel appearing for the
respondents.
9. On a perusal of records revealed that originally the sale
agreement dated 05.08.1993, entered between the respondent's father and
the petitioner's father. Subsequently both were died and the petitioner made
endorsement on 13.04.1994 & 25.12.1994 on receipt of balance amount of
Rs.47,675/-, in pursuant to the agreement for sale dated 05.08.1993. While
pending the suit, the petitioner also filed petition in I.A.No.632 of 2013
under Section 47 of the Indian Evidence Act, to get expert's opinion in
respect of the subsequent endorsement made in the agreement for sale dated
05.08.1993. Though it was allowed in favour of the petitioner, subsequently
the petitioner failed to take any steps for getting any expert's opinion and
therefore, it was dismissed. It shows that the petitioner had no interest to
proceed with the suit and also shows his lethargic attitude. Therefore, the
decree passed against him cannot be set aside as erroneous.
10. That apart, after dismissal of the condone delay petition, the
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C.R.P.No.4038 of 2017
execution petition was ordered and accordingly the sale deed was executed
in favour of the respondents herein. The sale certificate was also issued in
their favour by the execution Court and they are put in possession of the suit
schedule property. Further, the petitioner also failed to explain the delay
with proper and sufficient reasons in the condone delay petition as such the
Court below rightly dismissed the petition and this Court finds no infirmity
or illegality in the order passed by the Court below.
11. In view of the discussion, this Civil Revision Petition stands
dismissed. Consequently, connected miscellaneous petition is closed. There
shall be no order as to costs.
03.01.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The Additional District Munsif,
Cheyyar, Thiruvannamalai District.
https://www.mhc.tn.gov.in/judis
C.R.P.No.4038 of 2017
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.No.4038 of 2017
and C.M.P.No.18878 of 2017
03.01.2023
https://www.mhc.tn.gov.in/judis
