Madras High Court
Annathai vs Sankara Nainar (Died) on 14 October, 2025
C.M.P.(MD)No.14221 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2025
CORAM
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
C.M.P.(MD)No.14221 of 2025
in
Rev.Aplc(MD)SR.No.71505 of 2025
Vettumperumal (Died)
Kalanjiam (Died)
1. Annathai
W/o.Late Vettumperumal
2. Krishnaveni
D/o.Late Vettumperumal
3. Srivaikuntam
S/o. Late Vettumperumal
4. Sermakani
D/o.Late Natarajan
5. Annalakshmi
D/o.Late Natarajan ... Petitioners/review applicants
Page Nos.1/12
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C.M.P.(MD)No.14221 of 2025
vs.
Sankara Nainar (Died)
1. Venkatesh
S/o.Late Sankara Nainar
2. Thanushkodidurai
S/o.Late Sankara Nainar
3. Reshikesavan
S/o.Late Vettumperumal ... Respondents/Respondents
Civil Miscellaneous Petition filed under Section 5 of the Limitation
Act, 1963, praying to condone the delay of 28 days in filing the review
application against the order passed in C.M.P.(MD)No.2132 of 2025 in
S.A.(MD)SR.No.1346 of 2025 dated 24.06.2025.
Review Application filed under Order XLVII Rules 1 & 2, read with
Section 114 of the Code of Civil Procedure, 1908, praying to review the
order passed by this Court in C.M.P.(MD)No.2132 of 2025 in
S.A(MD)SR.No.1346 of 2025 dated 24.06.2025 and set aside the same.
For Petitioners/review applicants : Mr.V.Mukilan
for Mr.M.Muniasamy
Page Nos.2/12
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C.M.P.(MD)No.14221 of 2025
*****
ORDER
This Civil Miscellaneous Petition is filed to condone the delay of 28
days in filing the review application i.e., Rev.Aplc(MD)SR.No.71505 of
2025. The review application is filed under Order XLVII Rule 1 of CPC
seeking to review the order dated 24.06.2025 made in C.M.P.(MD)No.2132
of 2025 in S.A.(MD)SR.No.1346 of 2025.
2. Though this application seeks to condone the delay of 28 days,
since the delay occurred is in the review application filed, this Court perused
the order against which the review is sought to be made.
3. It is seen that five petitioners herein, who had filed the above civil
miscellaneous petition has originally filed S.A.(MD).SR.No.1346 of 2025
challenging the judgment and decree dated 28.02.2022 passed in A.S.No.28
of 2015 on the file of the Sub-Court, Vallioor, confirming the judgment and
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decree dated 24.11.2014 passed in O.S.No.130 of 2007 on the file of the
Additional District Munsif Court, Vallioor. The second appeal was filed
along with CMP (MD)No.2132 of 2025 with a delay of 950 days in filing
the appeal.
4. While considering the application to condone the delay, the Court
noted from the records that the suit originally filed in O.S.No.130 of 2007
seeking for declaration and mandatory injunction came to be decreed on
24.11.2014. The appeal preferred by the petitioners herein in A.S.No.28 of
2015 also came to be dismissed on 28.02.2022. In view of the dismissal of
the appeal, the declaration and mandatory injunction decree granted as
against the petitioners herein was operating from 28.02.2022. The
petitioners ought to have diligently filed the appeal and prosecuted the same
within time. However, only after an execution petition in E.P.No.4 of 2024
was filed by the respondents herein and notice was served to the petitioners
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on 30.08.2024, the petitioners have come up with the appeal along with an
application seeking to condone the delay of 950 days.
5. This Court also considered the averments in the affidavit filed in
support of the condone delay application. The only averment made in the
affidavit has been extracted in paragraph No.5 of the order dated 24.06.2025
in C.M.P.(MD)No.2132 of 2025 in S.A.(MD)SR.No.1346 of 2025. The
Court noted that when there are five petitioners and only one of the
petitioners had Gall Bladder stone ailment in February 2022, inaction on the
part of the other petitioners in not taking steps to file the appeal has not been
explained. Further, it was also noted that even according to one of the
petitioners who had ailment in February 2022, the delay that occurred
thereafter, from 2023 to 2025, has not been explained. The Court also noted
that one of the petitioners is an elected member and is also practicing as an
Advocate in the same Court. The respondents had stoutly objected,
contending that the petitioners were well aware of the decree passed in the
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first appeal. Only to frustrate the execution proceedings, the petitioners
have come up with the appeal along with an inordinate delay of 950 days.
6. In the order dismissing the condone delay application, the Court
gave a finding that when an application is filed to consider the delay under
Section 5 of the Limitation Act, 1963, then the petitioners ought to have
explained the delay occurred in filing the appeal. Under Section 5 of the
Limitation Act, 1963, only when the delay occurred is for a sufficient cause,
the delay would be condoned. In the instant case, the Court noted that the
petitioners, except the averment which has been extracted in the order, have
not even attempted to explain the delay that has been caused in filing the
appeal.
7. Paragraph Nos.6 and 7 of the order dated 24.06.2025 dismissing the
condone delay application are extracted hereunder:
"6. In the averments extracted above, it is only stated
that the first petitioner is suffering from Gall Bladder stone
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ailment in February 2022, still the delay occurred from 2023-
2025 has not been explained. Further, when there are other
four petitioners available and it is also argued by the learned
counsel for the respondents 1 and 2 that one of the petitioners
has also contested and got elected in the local body election
and he is also a practising Advocate, who is practising in the
same Court and aware of the Court proceedings still they
have consciously delayed the filing of the appeal. It is their
further contention that the petitioners, who were aware of the
proceedings did not choose to file this appeal in time and only
when the proceeding in the E.P. was initiated and the plaintiff
sought to execute the decree of the trial Court, they have come
up with the present petition belatedly with a huge delay of 950
days, without adducing any sufficient cause for condonation
of delay.
7. When the petitioners have approached this Court,
seeking for condonation of delay of 950 days in filing the
appeal, it is for the petitioners to explain the delay caused and
afford proper explanations to convince the Court, to condone
the delay. However, in the instant case, the petitioners have
not even attempted to explain the huge delay caused, except
the averments as extracted above. The averments made by the
first petitioner and the in-action on the part of the other
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petitioners are not sufficient cause to condone the huge delay
of 950 days."
8. This is not a case where the delay has been explained and the Court
had refused to accept the delay but it is a case where, the petitioners had not
even attempted to explain the delay. It is well settled by several decisions of
the Hon'ble Supreme Court that unless and until the delay occurred in filing
the appeal is properly explained, the same cannot be condoned by extending
any sympathy or by adopting a liberal approach at the costs of rights accrued
to the respondents.
9. When the condone delay application has been dismissed, the
petitioners have now come up with review application seeking to review the
order. It is to be noted that even this review application has not been filed
within time and the present CMP has been filed to condone the delay of 28
days in filing the review application.
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10. The learned counsel appearing for the petitioners contended that
the application filed under Section 5 of the Limitation Act, 1963, ought to be
considered liberally and since the same has not been considered liberally as
per the decisions of Hon'ble Supreme Court, the petitioners are entitled to
seek review of the order.
11. In essence, the contention of learned counsel for the petitioners
only seems to be that the order passed is erroneous and not in tune with
Section 5 of the Limitation Act, 1963. This is the main contention and
ground raised in the review application. This Court is not able to accept the
contention raised by learned counsel for petitioners.
12. The scope of Order XLVII Rule 1 of CPC has been, time and
again, explained and reiterated by Hon'ble Supreme Court that the review is
to be confined to parameters as set out in Order XLVII Rule 1 of CPC. The
power of review is to be confined to the scope of the provision. In a review,
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the Court does not sit in appeal over the order already passed. A review
cannot be treated as an appeal in disguise. If the petitioners feel that the
order is erroneous, then the erroneous order cannot be corrected in a review
and the remedy for the petitioners lies only by way of filing an appeal.
13.The arguments made and grounds raised do not fall within the
parameters contained under Order XLVII Rule 1 of CPC. The review
application filed is therefore, not sustainable. The execution petition is
pending for nearly two years, when the execution petitions are ought to be
disposed of within a period of six months as per the dictum of Hon'ble
Supreme Court. As such this Court feels that the present review filed along
with delay application is only an attempt to further drag or delay the
execution proceedings.
14. In view of the above, there is no merits in the Civil Miscellaneous
Petition and same is dismissed. Consequently, review application i.e.,
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Rev.Aplc(MD)SR.No.71505 of 2025 is rejected at the SR stage itself. There
shall be no order as to costs.
14.10.2025
Index : Yes / No
Neutral Citation : Yes / No
Speaking / Non-speaking
mk
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G.ARUL MURUGAN, J.,
mk
in
Rev.Aplc(MD)SR.No.71505 of 2025
14.10.2025
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