Madras High Court
Ramanathapuram Samasthanam vs C.Palanivel .. 1St on 3 January, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
C.R.P(MD)No.1778 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:03.01.2024
CORAM
THE HON'BLE MR.JUSTICE G.ILANGOVAN
C.R.P(MD)No.1778 of 2023
and
C.M.P.(MD)No.8849 of 2023
Ramanathapuram Samasthanam
Devasthanam, through its Diwan,
Office at Aranmanai,
Ramnad. .. Petitioner/3rdRespondent/
3rd Defendant
Vs.
1. C.Palanivel .. 1st Respondent/Petitioner/
Plaintiff
2.M.Ramu
3.T.Ramu .. Respondents 2&3/
Respondents 1&2/
Defendants 1&2
Prayer: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code, to set aside the order passed by the District Munsif
Court, Thiruvadanai in E.P.No.1 of 2021 in O.S.No.52 of 2003, dated
30.06.2023 by allowing the Civil Revision Petition.
For Petitioner : Mr.Lakshmi Gopinathan
For Respondents : Mr.A.Balaji
for R1
https://www.mhc.tn.gov.in/judis
Page No.1/8
C.R.P(MD)No.1778 of 2023
: Mr.I.Srihari Suriya
for R3
: No appearance for R2.
ORDER
This Civil Revision Petition has been filed challenging the
order passed by the learned District Munsif, Thiruvadanai in E.P.No.1 of
2021 in O.S.No.52 of 2003, dated 30.06.2023.
2. The District Munsif Court, Tiruvadanai in O.S.No.52 of
2003 by judgment dated 17.06.2008, decreed the suit declaring that the
plaintiff's title over the suit property and consequential permanent
injunction was also granted. Apart From that for the use and occupation
of the property by the defendants, rent was also fixed from January 2003
till they handover the suit property. Delivery of possession was also
granted, against which A.S.No.55 of 2008 was preferred by the third
defendant, who is the petitioner herein. The Appellate Court passed the
interim order dated 22.12.2008 directed the plaintiff to amend the plaint
and to pay the deficit Court fee. The operative portion of the Appellate
Court order reads as under:
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“1) The respondent/plaintiff is directed to
take appropriate steps in original court to rectify
the mistakes in the Amended plaint and decree.
2) The original court is required to make
corrections in the certified copies decrees obtained
by both parties.
3) The original court's decree copy filed
along with this memorandum of Appeal is ordered
to be returned to the Appellant/defendant.
4) After get it rectified from the original
court the Appellant and original court defendant
shall file the decree copy.
5) On filing of the rectified decree copy
the Appeal shall be revived automatically and with
the directions, this Appeal is closed.”
3. Against the above said order passed in the appeal, it appears
that the first respondent/plaintiff preferred C.R.P(MD)No.1110 of 2009
before this Court. By order dated 09.04.2011, this Court dismissed the
same with the following direction:
“10. Since the suit is of the year 2003 and the appeal
has been filed against the judgment and decree made
on 17.06.2008, I direct the plaintiff to carry out
necessary corrections and amendment for revival of
the Appeal suit and for completion of the final
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hearing, within four weeks from the date of receipt of
a copy of this order. On such rectification, the
plaintiff shall report to the First Appellate Court
within four weeks thereafter, so as to enable the first
appelle court to take up the first appeal and dispose of
the same on merits within a period of six month
thereafter.”
4. Thereafter, the 1st respondent/plaintiff herein took steps to
amend the decree by way of paying the deficit Court fee and the original
plaint by order dated 21.07.2012 in IA.No.184 of 2012. The decree was
rectified. Thereafter, the appeal was not revived by the Appellate Court
since the learned counsel for the appellant did not intimate the
compliance of the direction already passed.
5. Without reviving the appeal proceedings, it appears that
EP.No.1 of 2021 was preferred by the 1st respondent/plaintiff seeking
execution of decree wherein the present revision petitioner also appeared
and made objection. There was non-compliance of the direction already
issued. But however Execution Court did not accepted the objection
made by the revision petitioner and ordered execution of the decree
against which this civil revision petition has been preferred.
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6. The learned counsel for the 1st respondent/plaintiff submitted
that even as per the observation made by the Execution Court, the
compliance of the order was reported to the Appellate Court. It was also
known to the revision petitioner herein. They have known all those facts
but the appellant did not prosecute the appeal. It is referred in para 4 (ii)
of the order which reads as follows:
“ii. Further, as a consequence of the petition filed by the
decree-holder the decree was rectified by the original
court by the order dated 21.07.2012 and the counsel for
the decree-holder stated that the rectification of the decree
was reported to the 1st Appellate court's registry. The
main contentions of the 2nd and 3rd Respondents are the
decree-holder failed to comply with the order of the High
Court by not reporting the rectified decree. It is pertinent
to state the settled principle of law that even mere
pendency of appeal will not operate as a stay for the
execution proceeding unless and until there is an order of
stay. Thus this court concludes that this decree is
executable as per the wings of law.”
Thus the Execution Court held that the rectified decree was intimated to
the revision petitioner. Whereas it was represented that he is not aware of
the said fact. The intimation has sent to the Appellate Court, it is the duty
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of the Appellate Court to revive the appeal proceedings by issuing notice
to the parties. But it is not revived. Hence, the mistake committed by the
appellate Court should not penalize the parties.
7. Considering the limited request made by the revision
petitioner, this Civil Revision Petition is partly allowed with the
following directions:
(i) The Appellate Court, namely, the learned Sub Judge,
Ramanathapuram shall revive the appeal in A.S.No.55 of 2008 on its file
and revival must be intimated to the parties by mentioning specific date
for hearing.
(ii) Though a direction was already issued by this Court by
order dated 09.04.2011 in CRP(MD)No.1110 of 2009, because of the
above said development, further direction is hereby issued to the learned
Sub Judge, Ramanathapuram to dispose the appeal in A.S.No.55 of 2008
within a period of two months from the date of receipt of a copy of this
order. Compliance must be submitted to the Registry.
(iii) Both the parties are directed to cooperate with the
appellate Court proceedings to comply this order.
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(iv) In view of the above directions, the execution proceedings
in E.P.No.1 of 2021 in O.S.No.52 of 2003, on the file of the learned
District Munsif, Thiruvadanai, shall be kept in abeyance till the disposal
of the appeal in A.S.No.55 of 2008 on the file of the learned Sub Judge,
Ramanathapuram.
Consequently, connected miscellaneous petition is closed.
03.01.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
PJL
Note: Issue order copy on 08.01.2024.
To
1. The Sub Judge,
Ramanathapuram.
2.The District Munsif,
Thiruvadanai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J.
PJL
03.01.2024
https://www.mhc.tn.gov.in/judis
