Madras High Court
R.Uma vs S.Ramamurthy on 4 July, 2023
C.R.P. (NPD) No. 2284 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2023
CORAM:
THE HON'BLE Mr. JUSTICE V. LAKSHMINARAYANAN
C.R.P. (NPD) No. 2284 of 2017
and
C.M.P. No. 10761 of 2017
R.Uma ...Petitioner
Vs.
S.Ramamurthy ...Respondent
Prayer:- Petition filed under Article 227 of the Constitution of India praying
to allow the above C.R.P. by setting aside the fair and decreetal order passed
on E.A. No. 4217 of 2016 E.P. No. 1043 of 2016 in O.S. No. 5231 of
2010 on the file of the IX Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr. K.Venkateswaran
For Respondent : Not ready notice
ORDER
The petitioner suffered decree in O.S. No. 5231 of 2010. After
contest, the leave to sue was dismissed and the suit was decreed on
19.11.2011.
2. In order to execute the decree, a petition was filed in E.P. No. 1043
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No. 2284 of 2017
of 2016. In the said EP, despite being served with the summons, the
judgment debtor did not enter appearance and was set exparte on
16.09.2016. I
3. In order to set aside the exparte order, invoking Order XXI Rule
106 of Code of Civil Procedure, the civil revision petitioner filed E.A. No.
4217 of 2016. The learned Judge exercised his discretion in favour of the
petitioner and directed him to deposit a sum of Rs.90,000/-, which is
actually 1/6th of the decree amount. Challenging the same, the present civil
revision petition has been presented.
4. Mr. K.Venkateswaran, learned counsel appearing for the petitioner
would vehemently contend that the condition that has been imposed is
excessive, onerous and untenable. He agrees that a condition can be imposed
by a Court to set aside an exparte order, but the condition that has been
imposed in the present case as stated above suffers from all of the above.
5. I have carefully applied my mind to the facts of the case that the
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No. 2284 of 2017
condition that has been imposed is not in a situation which has arisen prior
to the passing of the decree. There is no dispute that the decree in O.S. No.
5231 of 2010 has become final. The decree passed has not been challenged
before the higher forum either by way of an appeal or challenging the
dismissal of leave to defend application. In other words, the entitlement of
the decree holder to the said sum had been adjudicated and has attained
finality. At least thereafter, the defendant should have been careful and
followed up the proceedings and execution. Instead of doing so, he remained
exparte and filed application in E.A. No. 4217 of 2016 to set aside the
exparte order.
6. The learned Judge has been very indulgent and has passed a very
reasoned order stating that only 1/6th of the decree amount has to be
deposited.
7. This is an exercise of discretion by the learned Judge and it need
not be interfered with under Article 227 of the Constitution of India. In any
event, I am satisfied that the condition that has been imposed, especially in a
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No. 2284 of 2017
case of post decree, is not excessive or unconscionable.
8. The time is extended for payment of the condition imposed by the
learned trial Judge till 31.08.2023. The said amount can be deposited in two
equal installments i.e. first installment of Rs.45,000/- should be paid on or
before 31.07.2023 and second installment of Rs.45,000/- should be paid on
or before 31.08.2023.
9. With the above modification, this civil revision petition is
dismissed. No costs. Consequently, the connected miscellaneous petition is
closed.
04.07.2023
Maya
NCS : Yes/No
Index : Yes/No
To
The IX Assistant Judge,
City Civil Court, Chennai.
V.LAKSHMINARANAN, J.
https://www.mhc.tn.gov.in/judis
C.R.P. (NPD) No. 2284 of 2017
Maya
C.R.P. (NPD) No. 2284 of 2017
04.07.2023
https://www.mhc.tn.gov.in/judis
