Madras High Court
Jayapal vs Narayanasamy Naidu (Died) on 4 March, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
CMP(MD)No.14619 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 04/03/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMP(MD)No.14619 of 2023
in
CRP(MD)SR No.76468 of 2023
Varadharajan (Died)
Neelavathi (Died)
1.Jayapal
2.Jayakumar
3.Jayaseelan : Petitioners/Petitioners
Vs.
Narayanasamy Naidu (Died)
1.Nathan
2.Rajagopal
3.Baskaran
4.Balagangadhara Thilagar
5.Manikandan : Respondents/Respondents
PRAYER:- Civil Miscellaneous Petition has been filed
under Section 5 of the Limitation Act to condone the
delay of 1646 days in filing the Civil Revision Petition
against the fair and decreetal order in EP No.50 of 2013
in OS No.606 of 1986, dated 08/01/2019 by the Principal
District Munsif, Kumbakonam.
For Petitioners : Mr.B.Anandan
For Respondents : Mr.H.Lakshmi Shankar
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1/7
CMP(MD)No.14619 of 2023
O R D E R
This Civil Miscellaneous Petition is filed to
condone the delay of 1646 days in filing the Civil
Revision Petition against the fair and decreetal order,
dated 08/01/2019 passed in EP No.50 of 2013 in OS No.606
of 1986, by the Principal District Munsif, Kumbakonam.
2.The facts in brief:-
A suit in OS No.606 1986 was filed for declaration,
permanent injunction, recovery of possession and for
costs. The Judgment Debtor was directed to pay money to
the Decree Holder within two months. That judgment was
passed, on 28/04/1992. Against which, appeal was
preferred by the Judgment Debtor. That came to be
dismissed in AS No.20 of 1992 on the file of the Sub
Court, Kumbakonam, by judgment, dated 24/06/1993. Second
Appeal was preferred in SA No.1445 of 1995. That was also
came to be dismissed by this court, dated 04/03/2008.
3.Later EP No.50 of 2013 was preferred by the legal
heirs of the Decree Holder. It was also allowed directing
the Judgment Debtor to deliver the possession. Against
which, CMA No.4 of 2019 was preferred by the defendants
1, 2, 4 and 5. The defendants 1 and 2 died after the suit
and the defendants 4 and 5 were on records. It was filed
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in the year 2019. Challenging the order passed by the
Executing Court on many grounds, CMA was pending for a
very long time and finally, it was dismissed, on
24/07/2023 observing that against the order passed in the
execution proceedings under Order XX1, Rule 35 of the
Civil Procedure code, appeal is not maintainable. But, of
course liberty was granted to the petitioners to
challenge the same in the manner know to law with the
following observation:-
“Though the appellant inadvertently
filed this Appeal, this court also numbered
the same without verification by over
sight. Therefore by following the rule that
court can do no wrong, this court gives
liberty to the Appellant to file proper
application before proper forum with
limitation exemption as provided in section
14 of the Limitation Act, 1963.”
4.Invoking the above said liberty, this revision is
preferred with a delay of 1646 days in filing the
revision.
5.Heard both sides.
6.The learned counsel appearing for the petitioners
would submit that since, they bona-fidely prosecuting the
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matter in CMA No.4 of 2019 before the Appellate Court,
section 14 of the Limitation Act will come to their aid.
It has been also observed by the appellate court.
7.Section 14 of the Limitation Act reads as under:-
“14.Exclusion of time of
proceeding bona fide in court without
jurisdiction —(1)In computing the
period of limitation for any suit the
time during which the plaintiff has
been prosecuting with due diligence
another civil proceeding, whether in a
court of first instance or of appeal or
revision, against the defendant shall
be excluded, where the proceeding
relates to the same matter in issue and
is prosecuted in good faith in a court
which, from defect of jurisdiction or
other cause of a like nature, is unable
to entertain it.
(2)In computing the period of
limitation for any application, the
time during which the applicant has
been prosecuting with due diligence
another civil proceeding, whether in a
court of first instance or of appeal or
revision, against the same party for
the same relief shall be excluded,
where such proceeding is prosecuted in
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good faith in a court which, from
defect of jurisdiction or other cause
of a like nature, is unable to
entertain it.
(3)Notwithstanding anything
contained in rule 2 of Order XXXIII of
the Code of Civil Procedure, 1908, the
provisions of sub-section (1) shall
apply in relation to a fresh suit
instituted on permission granted by the
court under rule 1 of that Order where
such permission is granted on the
ground that the first suit must fail by
reason of a defect in the jurisdiction
of the court or other cause of a like
nature.”
8.The learned counsel appearing for the respondents
would submit that it is not a bona-fide proceedings, the
petitioners ought to have known that CMA will not lie in
normal circumstances before the order passed in the
execution proceedings. He would also draw the attention
of this court to the order of revision, original suit
appeal proceedings, second appeal proceedings, etc.
9.He would further submit that the revision
petitioners are dragging on the matter. Now this sort of
objection can only be canvassed at the time of hearing of
the main CRP.
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10.Now there is a finding by the Appellate Court
that the petitioners are bona-fidely prosecuting the
matter, automatically the time spent, unless the above
said proceedings is wanton or mala fide can be excluded.
11.On that account, this Civil Miscellaneous
Petition is allowed, of course on payment of cost of Rs.
5,000/- (Rupees Five Thousand only) to the respondents on
or before 20/03/2024.
12.For reporting compliance, call on 22/03/2024.
04/03/2024
Index:Yes/No
Internet:Yes/No
er
To,
The Principal District Munsif,
Kumbakonam.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
in
04/03/2024
https://www.mhc.tn.gov.in/judis
