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Madras High CourtCMSA/12/2017dismissed for default

Thiyagaraj(Died) v. P. Subbiyan

2023-09-13Honourable Mr Justice P. Velmurugan5 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 13.09.2023 Coram:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN Civil Miscellaneous Second Appeal No.12 of 2017

1. Thiyagaraj (died)

2. T.Pruthyvi

3. Sathyamurthy (Sole appellant died. Appellants 2 and 3 brought on record as LRs of the deceased sole appellant viz. Thiyagaraj vide Court order dated 21.06.2023 made in CMP No.6791 & 6792 of 2023 in CMSA No.12 of 2017 by AANJ) ... Appellants Vs.

1. P.Subbiyan

2. Backiyam

3. Palanivel

4. Ganesan

5. Mullaiammal

6. T.Selvadurai

7. S.Selvarani

8. E.Ezlilarasi (Sole appellant died. Respondents 6 to 8 brought on record as LRs. of the deceased sole appellant viz. Thiyagaraj vide Court order dated 21.06.2023 made in CMP No.6830 & 6832 of 2023 in CMSA No.12 of 2017 by AANJ) ... Respondents Page No.1/5

PRAYER: This Civil Miscellaneous Second Appeal is filed under Section 100 of C.P.C., to set aside the judgment and decree dated 17.09.2016 of the Subordinate Judge, Nagapattinam, in CMA No.9 of 2014 and to restore and uphold the order and decretal order dated 04.09.2012 of the District Munsif, Vedaranyam in E.A.No.43 of 2011 in E.P. No.14 of 2010 in O.S. No.9 of 2008.

For Appellants : M/s.V.Raghupathi For Respondents : Mr.A.Muthukumar for R1 Mr.K.Goviganesan for R3 to R5 Mr.K.M.Subramaniam for R6 and R7 R2-died R8-Not ready in notice

JUDGMENT

This Civil Miscellaneous Second Appeal is filed to set aside the judgment and decree dated 17.09.2016 on the file of the Subordinate Judge, Nagapattinam, in CMA No.9 of 2014 and to restore and uphold the order and decretal order dated 04.09.2012 on the file of the District Munsif, Vedaranyam, in E.A.No.43 of 2011 in E.P. No.14 of 2010 in O.S. No.9 of 2008.

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2. This Civil Miscellaneous Second Appeal is pending from the year 2017. Though the other respondents are served, the cause list shows that R2 died. But no steps have been taken so far. Further, batta is due for R8 and the amended copy of memorandum of grounds is also not filed before the Registry.

3. A perusal of records shows that it is only a partition suit and preliminary decree has already been passed and it is at the stage of execution. Though the appeal is pending from the year 2017, no steps have been taken even to serve notice on the unserved respondent and the learned counsel for the appellant is not ready to prosecute the appeal which, clearly shows that the appeal has been filed only to protract the execution proceedings.

4. In view of the above, this Civil Miscellaneous Second Appeal is dismissed for default. There shall be no order as to costs. 13.09.2023 ksa-2 Index : Yes / No Speaking Order : Yes / No Page No.3/5

To

1. The Subordinate Judge, Nagapattinam

2. The District Munsif, Vedaranyam 3.The Section Officer, VR Section, High Court, Madras.

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P.VELMURUGAN, J.

ksa-2 13.09.2023 Page No.5/5