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Madras High CourtCRP(MD)/506/2019allowed

Muthiyan v. Palani Sikku Gounder

2019-03-13Honourable Mrs Justice S. Ramathilagam3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.03.2019 CORAM :

THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM CRP(MD) No.506 of 2019 and C.M.P.(MD) No.2514 of 2019 Muthiyan ... Petitioner/Petitioner/Defendant vs.

Palani Sikku Gounder

...Respondent/Respondent/Plaintiff

PRAYER:- Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order dated 18.11.2015 passed in I.A.No.210 of 2012 in O.S.No.50 of 2005 on the file of the Subordinate Judge, Theni.

For Petitioner : Mr.M.A.M.Raja

ORDER

This Civil Revision Petition has been filed to set aside the order dated 18.11.2015 passed in I.A.No.210 of 2012 in O.S.No.50 of 2005 on the file of the Subordinate Judge, Theni. 2.I.A.No.210 of 2012 was filed by the petitioner herein/defendant to condone the delay of 1533 days in preferring the petition to set aside the ex parte decree that was passed on 30.10.2007. In the said I.A., the petitioner herein/defendant contended that the suit was filed by the respondent herein/plaintiff for recovery of money and during the said proceedings, the petitioner herein/defendant filed I.P.No.38 of 2004 before the trial Court and the petitioner herein/defendant has also shifted his residence from Theni town to some other place and due to the same, he was not in position to know the status of the case from his counsel.

3.Further, the petitioner herein/defendant was suffering from Jaundice for nearly three years and hence, he could not follow the proceedings of the case and he was totally put in dark. Only on receipt of notice in the execution proceedings, the petitioner herein/defendant came to know the fact that an ex parte decree was passed on 30.10.2007. Hence, in preferring the petition, the delay

occurred, which is very much genuine and he prays for an opportunity to contest the case and prove his claim before the trial Court. The respondent herein/plaintiff denied the fact and further stated that the reasons stated by the petitioner herein/defendant for the abnormal delay are not satisfactory. 4.After hearing the arguments on either side, the trial Court has given a finding that the petitioner herein/defendant submitted that in June 2005, he left his residence from Theni to Avinasi Taluk and once again in the year 2009, he came to Theni and thereafter, he came to know the fact that an ex parte decree was passed on 30.10.2007. When the petitioner herein/defendant has admitted in his evidence that he came to Theni in the year 2009 and after knowing the fact that an ex parte decree was passed on 30.10.

2007, he has not taken any steps to set aside the said ex parte decree, whereas, only after receiving the notice in the execution proceedings in the year 2012, he has filed the said I.A. 5.The petitioner herein/defendant has admitted that every two days, he will visit his place at Theni and he is also in a hale and hearty. Further, he stated that the trial Court has condoned the abnormal delay of 1533 i.e., nearly 4 1/2 years without adducing any sufficient reason.

6.From the records it is seen that the suit in O.S.No.50 of 2005 was filed by the respondent herein/plaintiff for recovery of money and also after receiving the E.P.No.42 of 2017 summon in the above suit, the present civil revision petition has been filed. The petitioner herein/defendant, who is well aware of the proceedings, contended that he is ready and willing to proceed with the case if the petition is allowed on any terms. 7.In view of the contention raised by the petitioner herein/defendant and on perusing the records, it is seen that the decree amount is Rs.2,88,739/- and this Civil Revision Petition is liable to be allowed and the same is allowed on condition that the petitioner herein/defendant is directed to pay a sum of Rs.2,50,000/- to the credit of E.P.No.

42 of 2017 on the file of the learned Subordinate Judge, Theni, within a period of three weeks from the date of receipt of a copy of this order, failing which, this Civil Revision Petition shall stand automatically dismissed. The executing Court is at liberty to proceed with the case in E.P.No.42 of 2017 and dispose of the same at the earliest. No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CRL SIDE) // True Copy // Sub Assistant Registrar(CS)

mm To The Subordinate Judge, Theni.

CRP(MD) No.506 of 2019 13.03.2019 TR (22.04.2019) 3P 2C