Madras High Court
Alagumani vs Veerammal on 26 June, 2023
C.R.P.(MD)No.1283 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.1283 of 2023
and
C.M.P.(MD)No.6307 of 2023
Alagumani,
The Tahsildar,
Bodinayakanur. .. Petitioner
Versus
Kalimuthu (Died), S/o.Udacie
Muniyandi (Died), S/o.Udacie
Arumugam (Died), S/o.Udacie
1.Veerammal, D/o.Udacie
2.Irulayi Ammal, D/o.Udacie
3.Paraman, S/o.Ponnusamy
Rajjaiya (Died), S/o.Ponnusamy
Chinnaya (Died), S/o.Ponnusamy
Subramanian (Died), S/o.Ponnusamy
4.Ponnarasan, S/o.Late. Chinnaya
5.Palraj, S/o.Late.Chinnaya
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C.R.P.(MD)No.1283 of 2023
6.Ponmudi, S/o.Late.Chinnaya
7.Murugeswari, D/o.Late.Chinnaya
8.Parameswari, D/o.Late.Chinnaya
9.Rajendran, S/o.Late.Subramanian
Ayyapparaja (Died), S/o.Late.Subramanian
10.Sundari, D/o.Late.Subramanian
11.Dhanabakiyam, D/o.Late.Subramanian
12.Pandiarajan, S/o.Late.Rajayya
Rajasekaran (Died), S/o.Late.Rajayya .. Respondents
Prayer :- Petition filed under Section 115 of C.P.C., to call for the records relating to
the dismissal order passed in E.A.No.4 of 2023 in E.A.No.2 of 2022 in E.P.No.295 of
1997 in O.S.No.493 of 1989, dated 26.04.2023, on the file of the District Munsif
Court, Bodinayakanur, Theni District, and set aside the same by allowing this Civil
Revision Petition.
For Petitioner : Mr.Veera.Kathiravan
Additional Advocate General – III
Assisted by
Mr.S.Kameswaran
Government Advocate
For R1 and R2 : Mr.R.Suriyanarayanan
For R4, R7, R8 and R12 : No Appearance
ORDER
This Civil Revision Petition has been filed by the Tahsildar, Bodinayakanur.
The petitioner is aggrieved by the impugned order dated 26.04.2023 passed by the
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C.R.P.(MD)No.1283 of 2023
learned District Munsif, Bodinayakanur, Theni District, in E.A.No.4 of 2023 in
E.A.No.2 of 2022 in E.P.No.295 of 1997 in O.S.No.493 of 1989.
2. By the impugned order dated 26.04.2023, the Execution Court (District
Munsif Court, Bodinayakanur, Theni District), has dismissed E.A.No.4 of 2023 filed
by the petitioner for restoration of E.A.No.2 of 2022, which was dismissed for
default on 21.12.2022.
3. E.A.No.2 of 2022 was filed by the erstwhile Tahsildar, Bodinayakanur, in
the official capacity. E.A.No.2 of 2022 was dismissed for default/non-appearance,
after evidences were examined on behalf of the Government. The Government is a
stranger to the dispute in O.S.No.493 of 1989.
4. The said O.S.No.493 of 1989 was filed by one Kalimuthu, Muniyandi and
Arumugam, who have died, against the third respondent, Rajjaiya, Chinnaya and
Subramanian, who have also died, for bare injunction. In the plaint, the deceased
plaintiffs have stated that the land in question was a poramboke land. The said suit
was dismissed on 30.08.1990. Aggrieved by the same, the deceased plaintiffs filed
A.S.No.61 of 1991, which was allowed on 16.09.1994. Thus, there was a decree
against the defendants in O.S.No.493 of 1989.
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C.R.P.(MD)No.1283 of 2023
5. The Revenue Department, represented by the Tahsildar had initiated parallel
proceedings in O.S.No.185 of 2005 before the Distict Munsif-cum-Judicial
Magistrate Court for declaration that the decree passed in A.S.No.61 of 1991 on
16.09.1994 was not binding on it. The suit was dismissed on 27.09.2007. A further
appeal was filed before the Subordinate Court, Periyakulam, in A.S.No.69 of 2009,
which was also dismissed on 28.01.2010. The further appeal is pending before this
Court in C.M.P.(MD)No.5870 of 2023 in S.A.(MD)SR.No.32423 of 2023 with the
delay of approximately 13 years.
6. Meanwhile, the original plaintiffs in O.S.No.493 of 1989 have died. In the
light of the judgment and decree dated 16.09.1994, passed in A.S.No.61 of 1991, the
sisters of the original plaintiffs, who are the first and second respondents herein, filed
E.P.No.195 of 1997 and delivery was ordered. At the time when the first and second
respondents proceeded to take delivery of the property, it was resisted by the
Revenue Department through the Tahsildar.
7. Under these circumstances, the petitioner's predecessors filed E.A.No.2 of
2022 before the District Munsif Court, Bodinayakanur, under Section 47 of the Code
of Civil Procedure, 1908 objecting to delivery being taken. After evidences was
partially recorded, E.A.No.2 of 2022 filed under Section 47 of the Code of Civil
Procedure, 1908, was dismissed on 21.12.2022. The petitioner, who is competent
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C.R.P.(MD)No.1283 of 2023
and successor to the previous Tahsildar, filed E.A.No.4 of 2023 with the delay of 55
days in filing the application for restoration of E.A.No.2 of 2022.
8. The Court has dismissed the said E.A.No.4 of 2023 filed for restoration of
E.A.No.2 of 2022, with the following observations:-
''21) NkYk; 08.03.2023k; Njjpapy; mg;Nghija
Nghbehaf;fD}H tl;lhr;rpaH jpU.[yhy; mtHfs; ,e;j
tof;fpy; ePjpkd;w rhl;rpahf ,e;j ePjpkd;wj;jpy; tprhuiz
nra;ag;gl;Ls;s epiyapy; mjd; gpd;dUk; mg;Nghija
tl;lhr;rpaH mtHfSf;F ,.V.2/2022 kD js;Sgb
nra;ag;gl;l tpguk; Neubahfj;njhpahky; ,Ue;Js;sJ vd;W
jw;Nghija tl;lhr;rpaH jhf;fy; nra;Js;s mgpltpl;by;
$wpAs;s fhuzq;fSk; Vw;Gilajhf ,y;iy vd;Nw ,e;j
ePjpkd;wk; fUJfpd;wJ.
........
23) ,.V.2/2022 kDTk; ,e;j kDTk; tl;lhr;rpaH>
Nghbehaf;fD}H mtHfs; kDjhuuhf ,Ue;J muR my;yJ
khtl;l Ml;rpaH MfpNahH jug;gpduhf fhl;lhky; jdpg;gl;l
Kiwapy; tl;lhl;rpauhy; jhf;fy; nra;ag;gl;Ls;sJ vd;gJ
njhpatUfpwJ. ,JFwpj;J chpikapay; eilKiwr;rl;lk;
gphpT 79 kw;Wk; fl;lis 27 tpjp 1 Mfpatw;iw ghprPypid
nra;jjpy; murhy; my;yJ muRf;F vjpuhf xU tof;F
vt;tifapy; jhf;fy; nra;ag;glNtz;Lk; vd;gJ gw;wp
$wg;gl;Ls;sJ vd;gJ njhpatUfpwJ.
24) NkYk; ,J Fwpj;J Muthavalli Vs Thasildar and
another CRP (PD) No.901/2017 tof;fpd; cj;jutpy;
khz;GkpF caHePjpkd;wk; The District Collector Srikakulam
and others Vs Bagathi Krishna Roa and another reported in 2010
(5) LW 17 - vd;w tof;fpy; gphpT 79 kw;Wk; fl;lis 27
kw;Wk; tpjp 1 chpikapay; eilKiwr; rl;lk; Fwpj;J
gpd;tUkhW $wpAs;s fUj;Jiu ftdj;jpy; nfhs;sj;jf;fhf
cs;sJ vd;w ,e;j ePjpkd;wk; fUJfpd;wJ. Nkw;gb
fUj;Jiu gpd;tUkhW:-
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''5. Section 79 of the Code of Civil Procedure
C.R.P.(MD)No.1283 of 2023
(hereinafter `CPC') specifically deals with suits by and
against the Government and provides that in suits by and
against the Government, the authority to be impleaded as
the plaintiff or defendant, would be the Union of India or
Central Government or the State or State Government.
Proviso to Rule 9 of Order 1 provides that non-joinder of
necessary party is fatal.
6. Rule 1 of Order XXVII CPC deals with suits by or
against the Government or by officers in their official
capacity. It provides that in any suit by or against the
Government, the plaint or the written statement shall be
signed by such person as the Government may like by
general or special order authorize in that behalf and shall
be verified by any person whom the Government may so
appoint.''
Nkw;fz;l rl;lg;gphptpd;gb tl;lhl;rpaH vd;gtH
muRf;fhf jdpg;gl;l Kiwapy; muir jug;gpduhf fhl;lhky;
ve;j xU tof;fpidAk; jhf;fy; nra;a ,ayhJ vd;gJ
njhpatUfpwJ. NkYk; ,t;tof;fpy; tl;lhr;rpaH jdpg;gl;l
Kiwapy; kD jhf;fy; nra;a murhy; ve;j xU rpwg;ghd
cj;juTk; gpwg;gpf;fg;gl;ljhf kDjhuH jug;gpy; ve;j xU
MtzKk; jhf;fy; nra;ag;gltpy;iy vd;gJ njhpatUfpwJ.
25) ..........
26) Nkw;fz;l ghprPyidfspd; mbg;gilapy; ,.V.2/2022
kD js;Sgb nra;ag;gl;l tpguk; ,e;j ePjpkd;wj;jhYk; muR
tof;fwpQH mtHfshYk; ,e;j kDjhuH mYtyfj;jpw;F
mDg;gg;gl;l fbjq;fs; NtW Nfhg;GfSld; fye;Jtpl;ljhf
$wp mjd; fhuzkhf ,k;kDit jhf;fy; nra;a 55 ehl;fs;
fhyjhkjk; Vw;gl;Ltpl;ljhf kDjhuH $Wk; fhuzk; ve;j
tifapYk; Vw;Gilajhf ,y;iy vd;Nw ,e;j ePjpkd;wk;
fUJfpd;wJ.
27) NkYk; ,e;j kD kw;Wk; ,.V.2/2022 kD
Mfpait muR nrhj;J rk;ge;jkhf jhf;fy; nra;ag;gLtjhf
$wg;gl;Ls;s epiyapy; muirNah murpd; gpujpepjpahd
khtl;l Ml;rpaiuNah jug;gpduhf NrHf;fhky; Nghb
tl;lhrpaH mtHfs; jdpg;gl;l Kiwapy; vt;tpj rl;l
mq;fPfhuKk; ,y;yhky; kDf;fis jhf;fy; nra;J RkhH 25
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C.R.P.(MD)No.1283 of 2023
tUlq;fSf;Fk; Nkyhf epYitapypUe;J tUk; mry;
epiwNtw;wy; kDthd ,.gp.295/1997 kDit jPHT
fhz ,ayhj tifapy; njhlHe;J fhyjhkjg;gLj;Jk;
tpjkhf nray;gl;L tUfpwhHfs; vd;Nw ,e;j ePjpkd;wk;
fUJfpd;wJ.''
8. The learned Additional Advocate General for the petitioner submits that the
proceedings under Section 47 of the Code of Civil Procedure, 1908, is not
circumscribed the exceptions in Section 5 of the Limitation Act, 1963. He submits
that the suit that was filed by the deceased respondents was for a bare injunction and
for a recovery of possession. It is further submitted that even as per the plaint, the
suit land is a poramboke land, situated at Uppukottai Village, S.No.344/1, measuring
to an extent of 45 cents.
9. It is submitted that two parallel proceedings are pending, one at the behest
of the petitioner under Section 47 of C.P.C. to raise an objection for taking delivery
of the Government poramboke land and other parallel proceedings initiated by the
respondents 1 and 2/decree holders was seeking to execute the decree passed by the
Trial Court in O.S.No.493 of 1989.
10. It is submitted that the case was represented by the erstwhile Tahsildar,
who was later transferred. It is further submitted that recording of evidence in
Section 47 of C.P.C. proceedings commenced on 19.10.2022 and thereafter, the case
adjourned from time to time for cross-examination of second witness on behalf of the
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C.R.P.(MD)No.1283 of 2023
petitioner.
11. It is submitted that during the interregnum, the Tahsildar, who was
representing the petitioner, was transferred and therefore, on 21.12.2022 the
obstruction petition filed by the petitioner under Section 47 of C.P.C. was rejected
and therefore, the applications were filed for restoring Section 47 of C.P.C. petition.
13. The learned counsel for the respondents 1 and 2, on the other hand, has
placed reliance on the decisions of this Court rendered in M.Ponnupandian vs.
Selvabakiyam and others reported in 2003 (4) CTC 225. A reference is made to
Paragraph No.11, which reads as under:-
''11. Therefore, it is well settled now that Section 5 of the
Limitation Act, 1963 is not applicable to the petition filed for setting aside
the orders passed ex parte under Rule 106 of Order XXI C.P.C. and the
provision contained in Sub-rule (4) of Rule 105 (Madras Amendment) is
no longer in force. However, it has been held by a learned single Judge of
this Court in A.I.R. 1995 Madras 242 (R.Parasuraman vs. Jayalakshmi
Ammal and others), that the provisions under the Limitation Act, 1908 are
applicable to the proceedings by virtue of the Order XXI Rule 105(4) C.P.C.
and rejection of application for condonation of delay as Limitation Act
1963 is not applicable to execution proceedings is not proper. It
appears that the judgment of the Division Bench of this Court, 1989-1 Law
Weekly, 178 (cited above) was not brought to the notice of the learned
Single Judge in rendering the decision as such.''
14. A reference is also made to another decision of the Hon'ble Supreme Court
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C.R.P.(MD)No.1283 of 2023
in Damodaran Pillai and others vs. South Indian Bank Ltd., [Appeal (Civil) No.
1079 of 2004, dated 08.09.2005], wherein the Hon'ble Supreme Court has held as
under:-
''An application under Section 5 of the Limitation Act is not
maintainable in a proceeding arising under Order XXI of the Code.
Application of the said provision has, thus, expressly been excluded in a
proceeding under Order XXI of the Code. In that view of the mater, even an
application under Section 5 of the Limitation Act was not maintainable. A
fortiori for the said purpose, inherent power of the court cannot be invoked.''
15. I have considered the arguments advanced by the learned Additional
Advocate General for the petitioner and the learned counsel for the respondents 1
and 2.
16. The point that arises for consideration is whether Section 47 Petition which
was dismissed on 21.12.2022 can be restored even otherwise by filing application
beyond 30 days.
17. As per Order XXI Rule 106(3) of the Code of Civil Procedure, 1908, the
restoration application or application for setting aside the exparte decree has to be
filed within a period of 30 days from the date when the applicant had knowledge of
the order. In this case, admittedly, E.A.No.2 of 2022 is the application filed under
Section 47 of the Code of Civil Procedure, 1908, which has to read in conjunction
with Rules 97 to 106 to Order XXI of C.P.C.
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C.R.P.(MD)No.1283 of 2023
18. As per Rule 105 to Order XXI of C.P.C., whether on the day fixed or any
other day to which the hearing may be adjourned, the applicant does not appear when
the case is called on for hearing, the Court may make an order that the application be
dismissed.
19. As per Sub-Rule (1) of Rule 106 to Order XXI of C.P.C., the applicant has
to file an application for restoration of the application or setting aside the ex parte
order and the Court is satisfied that there were sufficient causes for non-appearance
when the application was called on for hearing, the Court shall set aside the exparte
order on such terms as to costs and otherwise as it thinks fit.
20. For the purpose of disposal of this case, Rules 105 and 106 to Order XXI
of C.P.C. are reproduced below:-
Order XXI Rule 105 of CPC Order XXI Rule 106 of C.P.C.
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C.R.P.(MD)No.1283 of 2023
105. Hearing of Application. 106. Setting aside orders passed ex parte,
etc.
(1) The Court, before which an (1) The applicant, against whom an order is
application under any of the made under sub-rule (2) rule 105 or the
foregoing rules of this Order is opposite party against whom an order is
pending, may fix a day for the hearing passed ex parte under sub-rule (3) of that
of the application. rule or under sub-rule (1) of rule 23, may
(2) Where on the day fixed or on any apply to the Court to set aside the order, and
other day to which the hearing may be if he satisfies the Court that there was
adjourned the applicant does not sufficient cause for his non- appearance
appear when the case is called on for when the application was called on for
hearing, the Court may make an order hearing, the Court shall set aside the order or
that the application be dismissed. such terms as to costs, or otherwise as it
thinks fit, and shall appoint a day for the
(3) Where the applicant appears and further hearing of the application.
the opposite party to whom the notice
has been issued by the Court does not (2) No order shall be made on an application
appear, the Court may hear the under sub-rule (1) unless notice of the
application ex parte and pass such application has been served on the other
order as it thinks fit. party.
(3) An application under sub-rule (1) shall
be made within thirty days from the date of
the order, or where, in the case of an ex parte
order, the notice was not duly served, within
thirty days from the date when applicant had
knowledge of the order.
21. The obstruction filed by the petitioner is not limited by the exclusion
contained in Section 5 of the Limitation Act, 1963, as per which, any appeal or any
application, other than an application under any of the provisions of Order XXI of
C.P.C., 1908, may be admitted after the prescribed period, if the appellant or the
applicant satisfies the Court that he had sufficient cause for not preferring the appeal
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C.R.P.(MD)No.1283 of 2023
or making the application within such period.
22. The restrictions contained in Section 5 of the Limitation Act, 1963 cannot
apply to a third party to the proceedings, as Order XXI of C.P.C. primarily deals with
execution of a decree between the parties to the suit and in the event of sale of the
property in execution of the decree. Whereas, in this case, the Court is not concerned
with any money decree or execution of the money decree, where property was sold.
23. The suit was filed by the deceased respondents only for permanent
injunction and recovery of possession from the defendants in the said suit. The
petitioner is the third party to the proceedings. There is no merit in the impugned
order rejecting the application for condoning the delay of 55 days in setting aside the
order dismissing the obstruction petition filed by the petitioner. Consequently, the
impugned order dated 26.04.2023, passed in E.A.No.4 of 2023 in E.A.No.2 of 2022
in E.P.No.295 of 1997 in O.S.No.493 of 1989 is set aside and E.A.Nos.2 of 2022 and
4 of 2023 stand restored and accordingly, this Civil Revision Petition is allowed. No
costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes/No 26.06.2023
Index : Yes/No
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C.R.P.(MD)No.1283 of 2023
Internet : Yes/No
smn2
To
The District Munsif,
Bodinayakanur,
Theni District.
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C.R.P.(MD)No.1283 of 2023
C.SARAVANAN, J.
smn2
Order made in
C.R.P.(MD)No.1283 of 2023
26.06.2023
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