Madras High Court
Ayyamalai @ Ayyasamy vs Rangasamy on 30 March, 2023
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2023
CORAM
MR.JUSTICE N.SESHASAYEE
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
Ayyamalai @ Ayyasamy ... Petitioner
Vs.
1.Rangasamy
2.Chinnasamy
P.Ramasamy Naidu (died)
R.Thirumurthy (died)
3.R.Duraisamy (died)
4.D.Nagarathinam
W/o.Late R.Duraisamy
5.D.Raghupathi
S/o.Late R.Duraisamy
(R3 died, R4 & R5 brought on record
as LRs of the deceased R3 vide court
order dt.18.07.2022 in CMP.Nos.3452
3453 & 3454/2016 in SA.SR.50911/14
by CVKJ) ... Respondents
1/8
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
PRAYER: This petition is filed under Section 5 of the Limitation Act,
seeking to condone the delay of 383 days in filing the second appeal against
the judgment and decree dated 28.09.2012 made in A.S.No.64 of 2011 on
the file of the learned III Addl. Subordinate Judge of Coimbatore.
For Petitioner : Mr.K.M.Ramesh
For Respondents : Mr.S.Mukunth, Senior Counsel
for M/s.Sarvabhavan Associates for R1, R2
Mr.M.S.Seshadri for 4 & 5
ORDER
This petition is filed for condoning the delay of 383 days in filing the second
appeal.
2.At the outset, it has to be recorded that this Court wonders why this appeal
at all, and the reasons are may be stated as below;
● Certain Ramasamy was holding a block of 6.26 acres. It is a
piece of agricultural land. On 03.01.1981, Ramasamy entered
into a sale agreement for the sale of the entire property in favour
of one Rangasamy and Chinnasamy.
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
● Ramasamy had three sons viz. Ayyamalai, Veeramalai @
Duraisamy and Thirumurthy.
● While so, Ayyamalai instituted O.S.No.113 of 1981 for partition
of his 1/4th share, on his contention that the property in question is
an ancestral piece of property in the hands of his father
Ramasamy. In this suit, the agreement holders were arrayed as
defendants 13 and 14. The trial Court dismissed the suit based on
its finding that the property is the absolute property of
Ramasamy. Challenging the said decree, Ayyamalai preferred
A.S.No.145 of 1987 and the first appellate Court came to a
different conclusion and held that the said property indeed is an
ancestral property in the hands of Ramasamy and declared
Ayyamalai's 1/4th share in it.
● Challenging the decree of the first appellate court, the agreement
holder (defendants 13 and 14) preferred S.A.No.858 of 1989, but
the same came to be dismissed.
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
● After the dismissal of O.S.No.113 of 1981, the suit which
Ayyamalai had laid for partition, the agreement holders had
instituted O.S.No.1186 of 1987 for specific performance of the
sale agreement. This suit came to be partly decreed by the trial
Court vide its judgment dated 26.08.2010. The trial Court had
relied on the judgment of the first appellate Court in A.S.No.145
of 1987 and granted a decree for specific performance as
concerning a mere 1/4th share of Ramasamy. Ayyamalai
challenged it in A.S.No.64 of 2011 and he was unsuccessful
before the first appellate Court. It is in this setting, Ayyamalai
had come before this Court with this M.P.No.1 of 2014 for
condonation of delay of 383 days in filing an appeal.
2.This Court was furnished with few other facts:
(a) Since the dismissal of S.A.No.858 of 1989, Ayyamalai had moved the
trial Court with this petition for passing the final decree, in which, the decree
holders in the present suit were arrayed as two of the respondents.
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
(b) So far as the decree holders in suit for specific performance in
O.S.No.1186 of 1987 are concerned, they moved the Execution Court for
obtaining sale of Ramasamy's undivided 1/4th share in their favour, and the
Execution Court has since executed a sale deed on 21.02.2018.
(c) In the meantime, Ayyamalai is said to have filed another suit in
O.S.No.701 of 2022 for an injunction against the decree holders herein from
entering possession. This apart, he has also filed another suit in O.S.No.2017
of 2022 for a declaration that the sale deed executed by the Court is null and
void. These apart, there are some disputes vis-a-vis the remaining 3/4th share
between Ayyamalai and his two other brothers, which do not concern this
Court in dealing with the present petition.
3.While the Court is essentially required to consider the merit of the reasons
adduced for condonation of delay in filing the second appeal, yet it wondered
why at all a second appeal. Here is a situation where the plaintiff wanted his
1/4th share in the suit property, and that has been declared to him. He now
has to work out his share in a metes and bounds partition, for which he has
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
already filed an application for passing the final decree and the same is
pending. Therefore, this Court enquired the learned counsel for the decree
holders herein if they are keen to be in possession of the property to which
the learned counsel made a fair statement on the instruction of his party that
inasmuch as he has purchased only the undivided 1/4th share of his father, he
would wait for the final decree to get his share defined and demarcated.
4.The statement made by the learned counsel for the decree holders fits in
with the legal position. After all, a purchaser from a co-sharer is not entitled
to be in immediate possession of the property, and he has only a right to seek
partition. The partition decree has already been passed, and the share that
ought to be allotted to Ramasamy has now been transferred to the decree
holder vide a sale deed executed on 21.02.2018 by the Execution Court.
They also make an undertaking through their counsel that they would not
enter possession and would wait for the Execution Court to pass the final
decree.
5.When the decree holders make a statement which is just, fair and legal,
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
then to condone the delay in this petition and to let the second appeal taken
on record itself will be a waste of judicial time. Parties are therefore required
to approach the Court before which the final decree application is pending.
Since the matter is pending from 1981, the Court before which the
application for final decree is pending is required to expedite the same and
dispose of the same within a period of six (6) months from today.
6.This petition stands dismissed. Consequently, S.A.SR.No.50911 of 2014 is
rejected at the SR stage itself.
30.03.2023
kas
Index : yes / no
Internet : yes / no
Speaking / Non Speaking order
To.
1.The III Additional Subordinate Judge
Coimbatore
https://www.mhc.tn.gov.in/judis
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
N.SESHASAYEE, J.
kas
M.P.No.1 of 2014
in S.A.SR.No.50911 of 2014
30.03.2023
https://www.mhc.tn.gov.in/judis
