Tamilselvi v. Purushothaman

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.07.2024

CORAM

THE HON'BLE MR.JUSTICE V. LAKSHMINARAYANAN Tamilselvi ...

Petitioner -VsPurushothaman ...

Respondent Prayer : Civil Revision Petition under Article 227 of the Constitution of India to direct the trial Court to number the unnumbered interlocutory application in IA.SR.No.230 of 2024 in OS No.131 of 2015 filed by the revision petitioner dated 08.04.2024 on the file of the Subordinate Judge, Gingee by allowing this CRP. For Petitioner :

Mr.C.Munusamy

O R D E R

This civil revision petition has been filed for a direction to the trial Court to number I.A.SR.No.230 of 2024 in O.S.No.131 of 2015.

2. O.S.No.131 of 2015 is a suit for specific performance of an agreement of sale dated 22.01.2014. In the said suit, an exparte decree was passed on 24.07.2018. To set aside the same and to condone the delay, an application was filed in I.A.SR.No.230 of 2024. On 08.04.2024, the learned Subordinate Judge at Gingee on his return of papers, made the following endorsement:

" Returned Dated : 30.04.2024 ,t;tHf;F ,e;ePjpkd;wj;jpy; E.P.78/2022 Mf nfhg;gpw;F vLf;fg;gl;L 13/02/2024 md;W property delivery on 24.01.2024. No objection filed. E.P. proceeding closed vd;W Kof;fg;gl;Ls;sJ.

vdnt jpUg;gg;gLfpd;wJ/ fhyk; 20 ehl;fs;"

3. The reason for the return is that the decree holder has already executed the decree and therefore the said petition is not maintainable. The fact that the decree is executed does not mean the defendant is not entitled to move an application to condone the delay and set aside the exparte decree. For the purpose of condonation of delay, the Court has to see whether the defendant has made out any sufficient cause or not to file an application under Order IX Rule 13. The fact that the decree has been executed is no more a reason to return the application for condonation of delay and to set aside the exparte decree.

4. Consequently, the Civil Revision Petition stands allowed. The endorsement made on 30.04.2024 by the learned Subordinate Judge, Gingee is set aside. The learned Judge is directed to number the application, issue notice and receive

counter from the plaintiff / respondent and dispose of the application in accordance with law. No costs.

19.07.2024 Index : Yes/No KST Note to Registry: The petition filed to set aside the exparte decree in IA SR.No.230 of 2024 may be returned to the learned counsel for the petitioner after obtaining the usual endorsement.

To The Subordinate Judge Gingee.

V. LAKSHMINARAYANAN, J.

KST C.R.P. No.2546 of 2024 19.07.2024