Madras High Court
S.Babu vs V.Pandiarajan on 20 September, 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE : 20.09.2024
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Rev.Aplc(MD)No.45 of 2024
and
CRP(MD)No.1867 of 2024
1.Rev.A(MD)No.45 of 2024:-
S.Babu : Petitioner/Petitioner
Vs.
1.V.Pandiarajan
V.Durairaj(Died)
2.D.Mohanram
3.D.Tiruvenkada Kannan
4.D.Jayalakshmi
D.Gunasundari (Died)
5.Pandi @ Karmegam
6.Rahini
7.Sonaiyandi : Respondents/Respondents
(R2 to R4 are given up)
Prayer:This Review Application is filed under Order
47 Rule 1 and 2 CPC r/w section 114 of the Civil Procedure
Code to review the order rendered in CRP(MD)No.1473 of
2022, dated 22/02/2024.
For Petitioner : Mr.R.Suriyanarayanan
For 1st Respondent : Mr.R.Sankar Ganesh
For R2 to R7 : Given up
https://www.mhc.tn.gov.in/judis
1/10
2.CRP(MD)No.1867 of 2024:-
S.Babu : Petitioner/3rd Party/3rd Party
Vs.
1.V.Pandiarajan : 1st Respondent/Petitioner/
Plaintiff
V.Durairaj(Died)
2.D.Mohanram
3.D.Tiruvenkada Kannan
4.D.Jayalakshmi
D.Gunasundari (Died)
5.Pandi @ Karmegam
6.Rahini
7.Sonaiyandi : Respondents 2 to 6/
(R2 to R4 are given up) Respondents/
Defendants 2 to 4, 6 and 7
Prayer: This Civil Revision is filed under section
151 of the Civil Procedure Code, to set aside the Docket
Order, dated 04/03/2024 made in EP No.192 of 2008 in OS
No.21 of 2008 on the file of the Sub Court, Theni
For Petitioners : Mr.R.Suriyanarayanan
For 1st Respondent : Mr.R.Sankar Ganesh
For R2 to R7 : Given up
COMMON ORDER
The review application is filed seeking to review
the order rendered in CRP(MD)No.1473 of 2022, dated
22/02/2024, whereas civil revision petition has been filed
seeking to set aside the docket order, dated 04/03/2024
made in EP No.192 of 2008 in OS No.21 of 2008 on the file
of the Sub Court, Theni.
https://www.mhc.tn.gov.in/judis
2.The facts in brief:-
CRP(MD)Nos.1473 of 2022 and 2494 of 2023 were filed
against the order passed by the trial court. It was heard
in common and a common order was passed on 23/02/2024 by
making the following observation:-
“7.The learned counsel appearing
for the 1st respondent would submit that
even though, the decree was passed as
early as 25/06/2008 even after a lapse of
16 years, he could not realize the fruits
of the decree; One after another,
proceedings are initiated either by the
Judgment Debtor or by the private
persons. He also filed elaborate written
statement setting out the facts and
circumstances.
8.Another son by name D.Mohanram,
the 2 nd
respondent herein, who is the son
of the deceased 1st respondent V.Durairaj,
filed the suit in OS No.68 of 2008
seeking partition of the property. That
suit was also dismissed.
9.So from the narration of the
above said facts, it is seen that Decree
Holder is not able to realize the fruits
of the decree. Under these circumstances,
these two civil revision petitions came
to be filed.
https://www.mhc.tn.gov.in/judis
10.We will straightaway dismiss
the CRP(MD)No.1473 of 2022 stating that
since there is no stay order by the
appellate court namely the CMA court, the
executing court cannot on its own stay
the execution of the decree. So the
order passed by the trial court namely
executing court does not suffer from any
illegality or irregularity. So that, this
civil revision petition is liable to be
dismissed straightaway. Accordingly,
CRP(MD)No.1473 of 2022 is dismissed.
11.So far as CRP(MD)No.2494 of
2023 is concerned, of course that there
is a huge delay on the part of the
parties in filing CMA. He is a third
party to the proceedings. According to
him, he purchased the property when ex-
parte decree was passed. But however,
there is a finding against him to the
effect that a collusive settlement deed
was executed by the original defendant
V.Pandiarajan in favour of Thiruvengadam
to avoid the execution of the decree
against the property.
12.Similarly, the Decree Holder
also filed IA No.6 of 2008 to declare
that the settlement deed, dated
04/02/2008 is null and void.
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13.What happened to that suit is
not clear on record. So the right of this
petitioner must be decided only in the
appeal proceedings. Now there is a delay
of 914 days in filing the CMA.
14.According to the learned
counsel appearing for the petitioner, the
delay occurred, since he could not able
to contact his advocate office, because
he died, on 20/08/2020. Why there was a
delay on his part in approaching his
advocate office is also not explainable.
Now the entire decree amount is also
deposited by the petitioner before the
executing court. On that account, now the
matter be allowed by condoning the delay.
15.Per contra, as mentioned
above, the learned counsel appearing for
the 1st respondent would submit that the
reason mentioned by the petitioner is not
acceptable and reliable also. He would
rely upon the following judgment:-
(1)Zulaiha Syed Mohideen Vs.
D.Visalakshmi Ammal (2013(3)MNW (Civil)
509);
(2)K.M.Balasubramaniam Vs.
C.Loganathan (2011(2) MWN (Civil) 741;
and
(3)Jayaraman.G Vs. Devarajan
([2007(2)CTC 643]
https://www.mhc.tn.gov.in/judis
and would submit that when sufficient
cause is not shown by the petitioner,
then no leniency or consideration must be
made in his favour.
16.No doubt that there is a delay
on the part of the petitioner, but the
reason stated by him is that since the
learned counsel, who was appearing for
him died, so he could not contact his
office immediately; That reasons assigned
by the petitioner cannot be held to be
wanton. When the Advocate appearing for
the parties dies, intimation has to be
sent to the clients by his office.
Naturally, the affected person will be
the parties.
17.On that sole ground, I am of
the considered view that an opportunity
must be given to the petitioner to
prosecute the CMA to its logical
conclusion. The inconvenience caused to
the 1st respondent can be compensated by
way of costs. But if the petition is
dismissed on the ground of delay, then
serious prejudice will be caused to the
petitioner, especially when he has
deposited the entire decree amount and
also to the effect that he is a third
party to the litigation between the
Decree Holder and the Judgment Debtor. So
CRP(MD)No.2494 of 2023 can be allowed on
payment of costs.”
https://www.mhc.tn.gov.in/judis
3.After making the above said observation,
CRP(MD)No.2494 of 2023 was allowed on payment of costs of
Rs.10,000/-, but dismissed CRP(MD)No.1473 of 2022 stating
that the order passed by the trial court does not suffer
from illegality or irregularity.
4.Since there is no such order by the appellate
court, now this review application is filed by the
petitioner stating that by misconstruction and
misconstruing the subject matter of CRP(MD)No.1473 of
2022, this court passed the above said order. Actually
CRP(MD)No.1473 of 2022 was filed against the order passed
by the trial court in unnumbered EA No.-/2022 in EA No.92
of 2010. According to the petitioner, actually that
unnumbered EA was filed by this petitioner challenging the
auction sale conducted by the Execution Court. That
application was filed under Order 21 Rule 90 CPC. By docket
order, the trial court rejected the petition stating that
the petitioner has no locus standi to file the petition.
Only challenging the above said rejection order
CRP(MD)No.2494 of 2023 was filed. By mistake, this court
has observed that an unnumbered petition is filed to stay
the further proceedings in the EP.
5.Entire records have been called for and perused.
https://www.mhc.tn.gov.in/judis
6.From the perusal of the records, it is seen that
a mistake has been committed by this court by misconstruing
the subject matter of CRP(MD)No.1473 of 2022. Since the
mistake is apparent on the face of the records, that too
committed by this court, it is the duty of this court to
rectify the above said mistake. On that account, the order
passed in CRP(MD)No.1473 of 2022 is reviewed and the
following order is passed.
7.Simultaneously, CRP(MD)No.1867 of 2024 is filed
to set aside the docket order, dated 04/03/2024 passed in
EP No.193 of 2008 stating that on the basis of the
dismissal order passed by this court in CRP(MD)No.1473 of
2022, the Execution Court closed the EP Proceedings.
Against that docket order, CRP(MD)No.1867 of 2024 is filed.
8.By the Administrative Order, CRP(MD)No.1867 of
2024 is ordered to be tagged along with this Review
Application (MD)No.43 of 2024. All the matters were heard
together.
9.As mentioned above, in view of the above said
mistake apparent on the face of the records, CRP(MD)No.1473
of 2022 stands allowed directing the Execution Court to
entertain the petition filed and decide the same on its own
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merits within a period of three months from the date of
receipt of a copy of this order. Similarly, CRP(MD)No.1867
of 2024 is also allowed directing the trial court to reopen
the proceedings and decide the same on its own merits
within a period of three months from the date of receipt of
a copy of this order. No costs.
10.With the above said directions, the review
application and the civil revision petition are allowed. No
costs.
20/09/2024
Index : Yes/No
Internet : Yes/No
er
To,
1.The Sub Court,
Theni.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN,J
er
and
20/09/2024
https://www.mhc.tn.gov.in/judis
