Madras High Court
Tharangambadi Taluk vs Babu on 21 September, 2023
C.R.P.No.1379 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2023
CORAM:
THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.1379 of 2023
Tharangambadi Taluk,
Srikali Munsif Kattucheri
Chenaithalaivar Chettiar Sangam
rep. By its Treasurer T.Kumaravel
Mayiladuthurai ... Petitioner
Vs.
Kunju (deceased)
Muthu (deceased)
1. Babu
2. Ganesh
3. Devi
4. Suresh ... Respondents
Civil Revision Petition filed under Article 227 Constitution of India to
set aside the fair and decreetal order passed in E.A.No.6 of 2021 in
unnumbered E.P.No. in O.S.No.111 of 1983 dated 12.01.2023 on the file of
the learned District Munsif cum Judicial Magistrate, Tharangambadi.
For Petitioner : Mr. A.Muthukumar
M/s P.Srividhya
Mr.S.Hariharan
ORDER
The present Civil Revision Petition is filed to set aside the fair and
decreetal order passed in E.A.No.6 of 2021 in unnumbered E.P.No. In
https://www.mhc.tn.gov.in/judis
C.R.P.No.1379 of 2023
O.S.No.111 of 1983 dated 12.01.2023 on the file of the learned District
Munsif cum Judicial Magistrate, Tharangambadi.
2. The brief facts of the case is as follows:-
The petitioner, who is the plaintiff has preferred O.S.No.111 of 1983
for a declaration in respect of A schedule property and for injunction in
respect of B schedule properties. The said suit was decreed as prayed for
on 27.02.1990. As against the same, the respondents have preferred
A.S.Nos.20 and 21 of 1990, the said appeal suit was dismissed on
30.09.1994 confirming the orders passed in O.S.No.111 of 1983.
Aggrieved against the same, the ancestors of the respondents have
preferred S.A.Nos.580 and 581 of 1995 before this Court and by Judgment
dated 24.02.2006 this Court, dismissed the said Appeals. The petitioner
preferred E.P in the year 2017 to execute the decree passed in O.S.No.111
of 1983. Pending E.P., the petitioner has preferred E.A.No.6 of 2021
seeking permission to reconstruct the bundle, viz., E.P., on the ground that
the leading Lawyer, Mr.Thiayagarajan, who is the learned counsel on
record had died and the main E.P., was taken for complying certain defects
pointed out by the court below, thereby the same was lost and could not be
found out. The said E.A., was dismissed on 12.01.2023 on the ground that
permission cannot be afforded in view of mistake done by the counsel.
Aggrieved against the same, the petitioner has preferred the present
https://www.mhc.tn.gov.in/judis
C.R.P.No.1379 of 2023
Revision.
3. The learned counsel for the petitioner would submit that the court
below failed to see that the counsel, Mr.Thyagarajan, a leading civil
practioner of Sirkali, represented the decree holder and filed execution
petition and passed away on 14.08.2018 after prolonged illness of cancer
and that therefore, the learned District Munsif ought to have allowed the
petition and ordered for reconstruction of records.
4. The learned counsel for the petitioner contends that the court
below erred in not looking into either the court records or certified copies of
the CR Register produced by the decree holder and therefore, the order of
the learned District Munsif cum Judicial Magistrate, Tharagambadi is
erroneous.
5. Lastly, the learned counsel for the petitioner contends that the
court below failed to see that the decisions reported in 1989 (1) LW 195
[Dr.K.Srinivasan Vs. P. Srinivasan], was reversed on appeal by the
Division Bench of this Court reported in 1990 (1) LW 63 [K.Srinivasan Vs.
P.Srinivasan].
6. Heard the learned counsel for the petitioner and perused the
https://www.mhc.tn.gov.in/judis
C.R.P.No.1379 of 2023
documents placed on record.
7. Upon going through the documents placed on record, it is seen
that originally suit, which was filed by the petitioner in O.S.No.111 of 1983
for declaration in respect of A schedule property and for injunction in
respect of B Schedule properties was decreed in favour of the petitioner
and the same was challenged by the respondents upto this Court by way of
S.A.Nos.580 and 581 of 1995 and the same was dismissed and the
Judgment and decree passed in O.S.No.111 of 1983 dated 27.02.1990
was confirmed.
8. Subsequently, execution petition was proceeded by the petitioner.
Thereafter, the said petition was returned to comply with the certain defects
on 29.03.2018 and the same was received by Mr.Thiagarajan, learned
counsel for the petitioner on record. However, on account of the ill health
of Mr.Thiayagarajan, suffered a lot and died on account of cancer on
29.08.2018. Therefore, he could not comply with the defects and the said
petition was some how misplaced. Though a search was being launched
in all the places, the said petition cannot be found out and all the efforts
ended in vain. Therefore, pleaded to reconstruct the said petition. The
court below has not granted permission to reconstruct the bundle by
stating that the permission for reconstruction would be granted only if the
https://www.mhc.tn.gov.in/judis
C.R.P.No.1379 of 2023
bundle is misplaced by the court, thereby dismissed the petition.
9. Considering the facts and circumstances of the present case and
taking note of the fact that the suit filed by the petitioner was decreed in
favour of the petitioner and the same was upheld by the appellate court as
well as this Court and the fact that the execution petition was lost at the
advocate, viz., Mr.Thiayagarajan's office, which was received from the
court for carrying out certain defects and the fact that the said advocate
died by facing lots of challenges on account of cancer and keeping in mind
the Judgment of the Hon'ble Division Bench of this Court relied on by the
learned counsel for the petitioner referred supra, this Court is of the opinion
that the petitioner shall be granted one more opportunity, accordingly, the
order passed by the court below in EA No.6 of 2021 dated 12.01.2023 is
set aside and the court below is directed to reconstruct the papers and
proceed with the case in accordance with law.
In view of the above, the present Revision is allowed. No costs.
21.09.2023
Index:Yes/No
Internet:Yes/No
Speaking / Nonspeaking order
ssd
To
The District Munsif cum Judicial Magistrate,
https://www.mhc.tn.gov.in/judis
C.R.P.No.1379 of 2023
Tharangambadi.
V.BHAVANI SUBBAROYAN J.
ssd
C.R.P.No.1379 of 2023
21.09.2023
https://www.mhc.tn.gov.in/judis
