Madras High Court
C.Balamuralikrishnan vs D.Sulochana on 3 January, 2023
CRP No.3975 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.No.3975 of 2016
1.C.Balamuralikrishnan
2.Minor B.Shri Harini
3.Minor B.Tharika ..Petitioners
[Minors Rep. by their father/natural
guardian C.Balamuralikrishan]
Vs.
1.D.Sulochana
2.The Sub Registrar
Uthukuli,
Tiruppur District.
3.The District Registrar,
Karungalpalayam,
Erode District. ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, to set aside the fair and decreetal order dated 06.09.2016 made in
I.A.No.173 of 2014 in O.S.No.375 of 2004 on the file of the District Munsif
Court, Avinashi, by allowing the civil revision petition.
For Petitioners : Mr.N.Manokaran
For Respondents
For R1 : Mr.T.Balaji
For R2 & 3 : Mr.C.Sathish
Government Advocate
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CRP No.3975 of 2016
ORDER
The civil revision petition has been filed as against the fair and decreetal
order dated 06.09.2016 made in I.A.No.173 of 2014 in O.S.No.375 of 2004 on
the file of the District Munsif Court, Avinashi, thereby dismissing the petition to
condone the delay in filing the petition to set aside the exparte decree.
2. The first respondent filed a suit for compulsory registration in respect of
the suit property as against the deceased first defendant. In the said suit, the first
defendant was set exparte and thereafter the suit was decreed by a judgment and
decree dated 28.06.2011. On 02.09.2013, the deceased first defendant filed an
application to set aside the exparte decree with the delay of 797 days in filing the
petition to set aside the exparte decree. Pending the condone delay petition, the
deceased first defendant died. Thereafter, the legal heirs of the deceased first
defendant filed an application to condone the delay in filing the petition to set
aside the abatement and implead them as legal representatives. All the
applications were not numbered and while they were under SR stage, the Court
below dismissed the condone delay application initially filed by the deceased first
defendant on merits. Therefore, admittedly, on the date of passing an order in
I.A.No.173 of 2014, the applicant was not alive and the said order was passed as
against dead person.
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CRP No.3975 of 2016
3. It is also seen from the Execution application registered by Executing
Court proceedings that the Court below had adjourned the matter for steps and
thereafter dismissed. In the meanwhile, the petitioners filed a petition to set aside
the abatement and bring the legal heirs on record along with a condone delay
petition. Hence, this Court is inclined to set aside the order.
4. Accordingly, the order dated 06.09.2016 passed in I.A.No.173 of 2014
in O.S.No.375 of 2004 on the file of the District Munsif Court, Avinashi, is
hereby set aside and the case is remitted back to the Court below for fresh
consideration.
5. In the result, the civil revision petition stands allowed. The petitioners
are directed to re-present the application to set aside the condone delay in filing
the petition to set aside the abatement, set aside the abatement and bring on
record the legal heirs and on receipt of the same the Court below is directed to
dispose of the same on merits and in accordance with law. Thereafter, the Court
below shall dispose of the condone delay in filing the petition to set aside the
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CRP No.3975 of 2016
exparte decree on merits and in accordance with law. It is made clear that the
period of pendency of the civil revision petition may be excluded while re-
presenting the applications by the petitioners. There shall be no order as to costs.
03.01.2023
Speaking/Non-speaking order
Index : Yes/No
ata
To
The District Munsif Court, Avinashi.
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CRP No.3975 of 2016
G.K.ILANTHIRAIYAN.J,
ata
CRP.No.3975 of 2016
03.01.2023
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