Madras High Court
K.C.Kuppan vs C.Sadasivam on 30 January, 2023
CRP.No.4778 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.01.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.4778 of 2017
K.C.Kuppan ... petitioner
Vs.
1.C.Sadasivam
2.C.Krishnan
3.Aandal
4.Elumalai
5.Manuala
6.Mala
7.Seetha
8.Podhumi ... Respondents
PRAYER:
Civil Revision Petition filed under Article 227 of the Constitution of India to
set aside the order passed in OS.No.NIL of 2017 dated 28.08.2017 on the file of
the Subordinate Judge, Arakkonam, Vellore District and to number the same and
dispose of on merits.
For Petitioner : Mr.K.Mohanamurali
For Respondents
For R1 : Mr.P.Suresh Babu
For R2to8 : Mr.P.A.Chithramani
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CRP.No.4778 of 2017
ORDER
This civil revision petition has been filed to set aside the order
passed in OS.No.NIL of 2017 dated 28.08.2017 on the file of the Subordinate
Judge, Arakkonam, Vellore District, thereby rejected the plaint filed by the
petitioner herein.
2. The petitioner is the plaintiff. He filed suit for declaration declaring
that the judgment and decree passed in OS.No.147 of 2008 dated 23.02.2010
on the file of the District Munsif Court, Sholinghur is null and void. On perusal
of records, revealed that the petitioner is one of the defendants in the suit filed
by the first respondent herein for declaration and recovery of possession. In the
said suit, the petitioner was set exparte and exparte decree was passed.
Subsequently, the suit schedule property was attached and realised the decree
amount. The petitioner is the subsequent purchaser of the said property. The
petitioner along with the other defendants filed application in IA.No.548 of
2011 to condone the delay in filing the application to set aside the judgment and
decree. The said application was dismissed for default on 12.12.2011. Again
another application was filed by the petitioner in IA.No.463 of 2012 to condone
the delay of 647 days in filing the application to restore the condone delay
petition. It was also dismissed for default on 05.11.2014. Aggrieved by the
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CRP.No.4778 of 2017
same, the petitioner preferred civil revision petition before this Court in
CRP.No.4161 of 2015 and the same was also dismissed by this Court.
Thereafter the petitioner filed suit for declaration declaring that the judgment
and decree passed in OS.No.147 of 2008 as null and void. It was rejected for
the reason that the present suit is hit by res judicata and also barred by
limitation.
3. The learned counsel for the petitioner would submit that it is not hit
by principles of res judicata since the exparte decree would not operate as res
judicata. He also cited the judgment of this Court in the case of
M/s.K.D.Menon & Another Vs. M/s.Panchitra & Others reported in CDJ
2003 MHC 650. He also relied upon the judgment of this Court in the case of
Thiruvengadam Mammad Vs. Chathamkara Ammad reported in AIR 1929
Madras 89, in which this Court held that exparte decree would not operate as
res judicata.
4. In the case on hand, already the petitioner filed application to set
aside the exparte decree with condone delay petition and the same was
dismissed and confirmed by this Court. Therefore, the petitioner was already
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CRP.No.4778 of 2017
given opportunity and he contested the application and the same was dismissed
on merits. Therefore, the above judgments are not helpful to the case on hand.
As such, the court below rightly rejected the plaint and this Court finds no
infirmity or illegality in the order passed by the court below.
5. Accordingly, this civil revision petition is dismissed. There shall be
no order as to costs.
30.01.2023
Speaking/non-speaking
Index : Yes/No
Internet : Yes
lok
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CRP.No.4778 of 2017
https://www.mhc.tn.gov.in/judis
CRP.No.4778 of 2017
G.K.ILANTHIRAIYAN, J.
lok
To
The Subordinate Judge,
Arakkonam, Vellore District
CRP.No.4778 of 2017
30.01.2023
https://www.mhc.tn.gov.in/judis
