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Madras High CourtCRP(MD)/2720/2018dismissed

Hariharan, v. Subramanian,

2019-02-20Honourable Mrs Justice S. Ramathilagam3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.02.2019

CORAM

THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM CRP(MD).No.2720 of 2018(NPD) and C.M.P.(MD).No.11899 of 2018 Hariharan ...Revision Petitioner/Petitioner/ Defendant Vs.

1.Subramanian ...1st Respondent/Plaintiff/ Decree Holder 2.S.Dhandapani ... Respondent/2nd Respondent/ Auction Purchaser PRAYER: Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, to set aside the fair and decreetal order dated 12.10.2018 passed in E.A.No.26 of 2017 in E.P.No.38 of 2000 in O.S.No.139 of 1999 on the file of the learned Principal Subordinate Judge, Karur by allowing this civil revision petition. For Petitioner : Mr.S.K.Mani For Respondents : Mr.V.Meenakshi sundaram

O R D E R

This Civil Revision Petition has been preferred by the petitioner against the order passed in E.A.No.26 of 2017 in E.P.No.38 of 2000 in O.S.No.139 of 1999.

2.The petitioner, who is the defendant, has preferred the E.A. In the affidavit, he has stated that the accompanying petition was returned for compliance of some directions and subsequently, those papers were placed before the counsel for compliance, whereas, those records were mixed up with some other records and despite the petitioner's diligent search, he could find out the records recently. In this regard, the delay has been occurred and the same is beyond his control. Hence, the petitioner states that the delay of 1656 days has to be condoned.

3.The decree holder has filed the counter affidavit stating that the mixed up records were searched, which was obtained only on 06.10.2016 is incorrect and the delay of 5 1⁄2 years is very much enormous and the reasons stated by the petitioner is not a fair one.

4.The Executing Court has observed the contention raised by both sides, discussed the issue and gave a finding that the

condonation of the petition also discussed by the Executing Court and the said petition affidavit found to be a printed format, in which, the petitioner's name, address particulars, and number of days alone are written in pen and except the above particulars, the other matters are found to be a printed format. The accompanying petition also does not contain any details regarding the return of the application, which stood there has also no details regarding the date of return and the date of representation after compliance and these are also very much represented by the respondents.

5.However, the petitioner herein has not disclosed any facts or particulars in the said affidavit, till the pendency of the said petition. The details stated in the affidavit is also very vague particulars. The only particulars furnished in the said petition is there is a delay of 1656 days and no reason has been stated in the said petition and hence, the Executing Court has observed the petition filed by the petitioner regarding the reason for the said delay and whether the earlier application was returned and whether it was represented in time and all those details were not found in the said petition affidavit and it was very much disputed by the respondents. The attitude of the petitioner for filing the said petition in a printed format, without discussing any other facts, seems to be not a genuine. Hence, the petition was dismissed.

Aggrieved against the said order, the present Civil Revision Petition has been filed. 6.The learned counsel appearing for the petitioner has relied upon the judgment of the Apex Court in the case of B.S.SHESHAGIRI SETTY AND OTHERS V. STATE OF KARNATAKA AND OTHERS reported in (2016) 2 Supreme Court Cases 123.

7.In the ground, the petitioner has stated that the trial Court did not dispute the allegation from the side of the counsel that the returned papers were misplaced and the said contentions were not considered by the trial Court. When the delay is beyond his control, the revision petitioner need not put to suffer. Hence, this petition has to be diligently considered by the trial Court. It is further stated by the petitioner that the sale in the Court had been effected in favour of the second respondent by playing fraud upon the Court by suppressing the prior registered mortgage executed by the revision petitioner to Tiruchirapalli District Central Co-operative Bank Limited. Whether these facts are placed in the petition affidavit along with the relevant documents?. Hence, the trial Court, having found that there is no details in the printed affidavit and that there is no details as to how the petitioner is disputing the order of the executing Court and that the said details has not been clearly stated by him, dismissed the said petition. Hence, the finding recorded by

the trial Court dated 12.10.2018 in E.A.No.26 of 2017 need not be interfered with by this Court.

8.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS-I) // True Copy // Sub Assistant Registrar(CS) To 1.The Principal Subordinate Judge, Karur.

2.The Record Keeper, (2 copies)VR Section Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.D.NALLATHAMBI, Advocate ( SR-48632[F] dated 21/02/2019 ) ns CRP(MD).No.2720 of 2018(NPD) and C.M.P.(MD).No.11899 of 2018 20.02.2019 KM/(02.04.2019) 3P 5C