Madras High Court
Madhu @ Manokaran vs Kutti (Died) on 4 November, 2025
C.M.P.SR.No.147022 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2025
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
C.M.P.SR.No.147022 of 2025
in
A.S.No.129 of 2019
1.Madhu @ Manokaran
2.Kalpana
3.Periya Pappa ...Petitioners
Vs.
Kutti (Died)
1.Balaraman
2.Rajammal
3.Latchumi
4.Latchumi
5.Senna Kesavan
6.Subramani
7.Arumugam
8.Sambantham
9.Pasubathi
10.Vennila
11.Punithavathi
12.Sundhari
13.Senthil Kumar
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C.M.P.SR.No.147022 of 2025
14.Sundararaman
15.Pugazh
16.Chinnasamy
17.Pechikrishnan
18.Sanmugam
19.Tamilselvam
20.Jeyaraman
21.Suresh
22.Xavier
23.Sathish
24.Karthikeyan
25.Sasikumar
26.Dhandapani
27.Selvam
28.Punithavathi
29.Sathya
30.Parthiban ...Respondents
PRAYER:
Petition filed under Order 9 Rule 7 read with 151 of the Code of
Civil Procedure praying that the appeal may kindly be restored as against
the respondents 1 to 5, 7, 9 to 11 which has been dismissed for default by
order dated 20.02.2023 in A.S.No.129 of 2019 and pass such other
suitable orders as this Court may deem fit and proper and thus render
justice.
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C.M.P.SR.No.147022 of 2025
APPEARANCE OF PARTIES:
For Petitioners : Mr. C. Jagadish.
JUDGMENT
This is a matter arising out of the office note of the Registry dated
09.10.2025 in A.E. No.157 of 2025, in respect of numbering the civil
miscellaneous petition in C.M.P.SR.No.147022 of 2025 filed by the
Appellant in A.S. No.129 of 2019.
2.The brief facts of the case as stated in the supporting affidavit to
the petition are that the petitioners in this petition are the appellants in
the above appeal. The suit in O.S. No.47 of 2013 was filed by these
petitioners/appellants for partition and declaration to declare certain sale
deeds as null and void. The said suit was dismissed by the learned
Additional District Court, Dharmapuri, by judgment and decree dated
31.08.2018. Aggrieved by the same, this appeal has been filed.
3.In the appeal, there are totally 30 respondents. The appeal as
against respondents 1 to 5, 7, 9, 10, and 11 was dismissed for default due
to non-payment of Batta by order of this Court dated 20.02.2023.
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4.The petitioners thereafter presented the present petition on
11.09.2025, and the Registry assigned S.R. No.147022 of 2025 to the
petition. The petition was filed quoting the provision of law under Order
IX Rule 7 read with Section 151 of the Code of Civil Procedure. The
Registry, not being satisfied with the provision mentioned, returned the
petition with the following remarks:
“1.Provision of law not correctly given.
2.Delay petition and affidavit to be filed.”
The petitioners took back the papers and re-presented them on
08.10.2025 with the following endorsement:
“As per judgment passed in Palani Nathan vs. Devanai
Ammal in cititation 1989 (2) LW Page No.63 which is
enclosed. there is no period of limitation for filing an
Application under O9.R7. Hence, this petition is
maintainable.”
5.The Registry, however, was not satisfied with the said
endorsement and adhered to its earlier return. Consequently, at the
instance of the counsel for the petitioners, the office note has been
prepared and placed before the Court for judicial orders regarding the
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numbering of the petition.
6.The matter is listed today on 29.10.2025 and subsequently listed
today i.e on 04.11.2025 under the caption “ For Orders”. After hearing
the submissions of the learned counsel for the petitioners/appellants and
on perusal of the office note of the Registry, the following order is
passed.
7.The first return pertains to the provision of law mentioned in the
petition. The petitioners are the appellants in the appeal and have filed
the present petition to readmit the appeal which was dismissed as against
respondents 1 to 5, 7, 9 to 11. Since the proceedings arise out of an
appeal, and the dismissal was made against the above respondents for
default on the part of the appellants, such dismissal necessarily falls
under Order XLI Rule 17(1) CPC, which is the enabling provision
empowering the appellate court to dismiss an appeal for default of the
appellant.
8.In such a situation, the remedy provided under the Code of
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Civil Procedure to readmit an appeal dismissed for default is contained in
Order XLI Rule 19 CPC, which specifically provides that, if the
appellant satisfies the Court that there was sufficient cause for his non-
appearance or for non-compliance with the order, including non-payment
of process, the Court may readmit the appeal. It is, therefore, crystal clear
that the proper provision of law governing restoration or readmission of
an appeal dismissed for default of the appellant is Order XLI Rule 19
CPC.
9.On the other hand, the provision quoted by the
petitioners/appellants — Order IX Rule 7 CPC — applies only to trial
proceedings. That provision can be invoked only when a defendant has
been set ex parte for non-appearance after service of summons under
Order IX Rule 6(a) CPC. In the present case, the dismissal was of an
appeal as against certain respondents for non-payment of Batta and for
default of the appellants. Therefore, the provisions applicable at the trial
stage cannot be extended to appellate proceedings, where specific and
separate provisions exist under the Code. Hence, the provision of law
quoted by the appellants under Order IX Rule 7 CPC is incorrect, and the
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Registry’s objection on this aspect is found to be valid.
10.The second return of the Registry relates to the requirement of
filing a petition to condone delay. There can be no controversy that there
is no prescribed period of limitation for setting aside an ex parte order
under Order IX Rule 9 CPC. However, as already held above, the
applicable provision here is Order XLI Rule 19 CPC, and therefore, the
question of limitation must be examined with reference to that provision.
11.Under Article 122 of the Limitation Act, 1963, the time limit
prescribed for filing an application to restore an appeal dismissed for
default is thirty days from the date of dismissal. In the present case, the
petition seeks to restore the appeal dismissed as against respondents 1 to
5, 7, 9 to 11. Hence, Article 122 of the Limitation Act squarely applies.
Admittedly, the present petition has been filed beyond thirty days from
the date of dismissal. Consequently, an application under Section 5 of
the Limitation Act seeking condonation of delay is mandatory.
Therefore, the second return made by the Registry is also found to be
correct.
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12.Section 151 CPC quoted by the petitioners is not helpful to their
petition, as the inherent power under Section 151 CPC can be invoked
only in the absence of a specific provision of law. When the Code itself
provides a specific remedy or procedure, the inherent power under
Section 151 CPC cannot be resorted to or invoked to circumvent such
express provisions.
13.Hence, when the Code of Civil Procedure specifically
prescribes the procedure for restoration of an appeal under Order XLI
Rule 19 CPC, the appellants cannot invoke the inherent powers under
Section 151 CPC to achieve the same purpose. For the reasons stated
above, both the returns made by the Registry are held to be valid.
14.Be that as it May, at the fag end of the hearing, the learned
counsel counsel agreed to comply with the defects pointed out by the
registry and requested to direct the registry to return the papers to enable
the petitioner to comply with the returns. Accordingly, the learned
counsel for the petitioners shall take back the papers and represent the
same after complying with the defects and the Registry shall number the
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same if it is otherwise in order and list under the 'C.M.P. Caption' @
02.30 p.m., on 15.11.2025.
04.11.2025
ay
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
DR. A.D. MARIA CLETE, J
ay
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in
04.11.2025
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