Madras High Court
A.Senthilkumar vs V.Kalaivani on 27 July, 2023
CRP No.1471 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2023
CORAM:
THE HONOURABLE Mr. JUSTICE LAKSHMI NARAYANAN
CRP No.1471 of 221
and CMP No.11558 of 2021
A.Senthilkumar .... Petitioner
vs
V.Kalaivani ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of Code of Civil
Procedure against the fair and decreetal order passed in I.A.No.1 of 2019 in
O.S.No.22 of 2017 on the file of Principal District Court, Ariyalur dated
29.03.2021.
For Petitioner : Mr.R.Narayanan
For Respondent : Mr.G.Ethirajulu
for Mr.K.Babu
ORDER
O.S.No.22 of 2017 is a suit filed to repay a sum of Rs.27,00,000/-
together with interest at 12% p.a from the date of sale agreement dated
04.01.2017 till realisation.
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CRP No.1471 of 2021
2. The plaintiff had entered into an agreement with the defendant and had
paid a sum of Rs.27,00,000/-. Thereafter, when the plaintiff approached the
defendant for execution of the sale deed, she refused to do the same. Therefore,
being left with no other option, the plaintiff presented O.S.No.22 of 2017 for
recovery of money.
3. To the said suit, summons were sent to the defendant, but the same
were returned as “ intimation left/door locked”. Consequently, the Court set the
defendant ex-parte and decreed the suit by way of judgment dated 11.08.2018.
Pursuant to the decree, the decree holder/plaintiff/civil revision petitioner
moved an application for attachment of sale of the property in E.P.No.8 of 2019
on the file of Principal District Court at Ariyalur. Coming to know about the
Execution Petition, the respondent filed an application to condone the delay of
231 days in filing the application to set aside the exparte decree in I.A.No.1 of
2019.
4. By order dated 29.03.2021, the learned Judge allowed the application
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CRP No.1471 of 2021
on condition that a sum of Rs.1,000/- be paid by the defendant to the plaintiff
as costs.
5. Heard Mr.R.Narayanan, learned counsel for the revision petitioner and
Mr.G.Ethirajulu, appearing for Mr.B.Babu, learned counsel for the respondent.
6. I have carefully perused the case records and have considered the
arguments on either side.
7. The facts show that summons were attempted to serve on the
defendant, but, the defendant did not receive the same. Hence intimation was
left with the defendant. The Court could not serve the summons because the
defendant was not available and the endorsement that was made was “door
locked”. Therefore, the Court had no other option but to set the defendant
exparte. Nonetheless, the trial Court has exercised its jurisdiction to condone
the delay. I do not want to substitute my reason for the same. However, I find
that the interests of the plaintiff and the defendant have not been properly
balanced.
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CRP No.1471 of 2021
8. In the light of the above discussions, I am of the view that the delay
could have been condoned, but the condition could have been slightly more
stringent. Accordingly, I modify the condition imposed by the learned Principal
District Judge, Ariyalur in I.A.No.1 of 2019 in O.S.No.22 of 2017 dated
29.03.2021 with respect to Clause No.1 of the order by imposing a condition
that the defendant shall deposit the suit cost of Rs.1,17,500/- (Rupees One Lakh
seventeen thousand five hundred only) to the credit of the suit in O.S.No.22 of
2017 within a period of eight weeks from today. On such deposit, the amount
shall be kept in an interest bearing account. Further condition is imposed that
the defendant shall file a written statement within a period of six weeks from
today.
9. On such deposit, the Court below is requested to take up the
application under Order 9 Rule 13 and allow the same. It shall frame issues in
the suit and dispose of the suit within a period of nine months from the date
exparte decree is set aside.
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CRP No.1471 of 2021
10. With the above modification, the Civil Revision Petition is partly
allowed. No costs. Consequently, connected miscellaneous petition is closed.
27.07.2023
Index:Yes/No
Speaking order/Non-speaking order
sr
To
Principal District Court, Ariyalur
https://www.mhc.tn.gov.in/judis
CRP No.1471 of 2021
V.LAKSHMINARAYANAN,J.,
sr
CRP No.1471 of 2021
27.07.2023
https://www.mhc.tn.gov.in/judis
