Madras High Court
Shanthi vs The South Arcot Diocesan ... on 9 October, 2023
1 C.R.P.No.2850 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.10.2023
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.2850 of 2022
and
C.M.P.No.15424 of 2022
Shanthi ... Petitioner
-Vs-
The South Arcot Diocesan Corporation
Rep.by its Secretary
Fr.L.A.Arulpushpam
St.Agnes Seminary
No.4, Beach Road, Cuddalore-1. ... Respondent
Prayer : Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the decreetal and fair order in
E.A.No.311 of 2018 in E.P.No.4086 of 2014 passed by the Hon'ble
XXVIII Assistant City Civil Court at Chennai dated 16.08.2022.
For Petitioner : Mr.T.T.Ravichandran
For Respondent : No appearance
-----
1/6
https://www.mhc.tn.gov.in/judis
2 C.R.P.No.2850 of 2022
ORDER
The Revision Petitioner herein is the 5th defendant in the suit in
O.S.No.1288 of 2009 on the file of learned XVII Asst. Judge, City Civil
Court, Chennai, which was filed by the respondent/plaintiff for the relief
of recovery of possession.
2. Initially, the suit was filed against one Kothandaraman and after
his death, his legal heirs are impleaded in the suit. The Revision Petitioner
viz., Shanthi is added as one of legal heir of deceased defendant in the suit
in O.S.No.1288 of 2009. In that suit, the defendants were remain exparte
and based on the exparte decree, the respondent/decree holder initiated
execution proceedings in E.P.No.4086 of 2014. During the pendency of
the said execution proceedings, the 5th defendant filed an application in
R.E.A.No.311 of 2018 under Order 21 Rule 10 (3) of C.P.C. praying the
court to set aside the exparte order passed on 19.01.2015. In that
application, he contended that proper notice was not served on them and in
fact, the original suit proceedings was followed by her parents viz.,
Defendants 1 and 2. However, during the pendency of proceedings, both
of them were died, but due to lack of communication, as legal heirs, they
https://www.mhc.tn.gov.in/judis
were not able to follow the same. When they came to know about the
exparte order passed in the execution proceedings, immediately she filed
an application to set aside the exparte order passed on 19.01.2015 and also
prayed to conduct the suit by setting aside the exparte order. The said
application was objected by the plaintiff stating that to drag on the
proceedings, they have wantonly filed the said application and the starting
point of the limitation as pointed out by the revision petitioner to file this
application is also not sufficiently explained. Having filed the application
by the 5th defendant during the execution proceedings, they were aware of
the nature of execution petition, but they have filed this application by
invoking Order 21 Rule 10(3) of C.P.C. as such is not permissible.
Accordingly, that application was dismissed as there is no sufficient cause
given to set aside the exparte order. Challenging the said order, the
present Civil Revision Petition has been filed.
3. The learned counsel for Revision Petitioner argues that originally,
the suit was filed by father of Revision Petitioner Kothandaraman and
after his death, his mother/2nd defendant along with his legal heirs
contested the suit and subsequently, she also died. But, during their life
https://www.mhc.tn.gov.in/judis
time, they have alone followed the suit proceedings. Due to lack of
communication, as legal heirs of defendant, they were not able to follow
the suit proceedings in time. Subsequently, the decree holder initiated
execution proceedings to execute the decree and in that proceedings also,
proper notice was not served. Therefore, on coming to know about the
execution proceedings with their knowledge, they have filed an
application to set aside the exparte order, but the trial judge failed to
appreciate entire facts and circumstances of the case and erroneously
dismissed the same. Hence, he prayed to set aside the findings rendered in
E.A.No.311 of 2018.
4. Records perused. On perusal of records, it would reveals that the
suit was originally filed by the respondent herein for recovery of
possession and much earlier on 19.01.2015 the defendant was set exparte.
Thereafter, to execute the decree, the plaintiff filed the present Execution
Petition. Admittedly, during the life time of the parents of the Revision
Petitioner, they have followed the proceedings. Subsequently, mother of
Revision Petitioner was also died as she was set exparte. So, based on the
exparte decree, the plaintiff attempted to take possession of the property
https://www.mhc.tn.gov.in/judis
and if opportunity is not given to the legal heirs of defendant to defend
their case, then their valuable right to defend the property will be defeated.
However, notice was served on the side of respondent, but there is no
representation on their side. So, the reasons assigned by the Revision
Petitioner is justifiable one. Accordingly, this Civil Revision Petition is
allowed and the findings of the executing court in E.A.No.311 of 2018 in
E.P.No.4086 of 2014 is set aside and the E.A.No.311 of 2018 is ordered to
be allowed. Furthermore, opportunity is given to the 5th judgment debtor to
defend the execution proceedings. The Executing Court is directed to
dispose the E.P.No.4086 of 2014 on merits within a period of four months
from the date of receipt of copy of this order. No costs. Consequently,
connected Civil Miscellaneous Petition is closed.
09.10.2023
Index : Yes/No
Speaking Order : Yes/No
rpp
To
The XXVIII Assistant City Civil Judge, Chennai.
https://www.mhc.tn.gov.in/judis
T.V.THAMILSELVI, J.
rpp
C.R.P.No.2850 of 2022
09.10.2023
https://www.mhc.tn.gov.in/judis
