Madras High Court
Anthonysamy vs Loordhusamy on 23 January, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23.1.2012. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(NPD)No.509 of 2011 and M.P.No.1 of 2011 Anthonysamy Petitioner vs. Loordhusamy Respondent Civil Revision Petition against the order dated 2.9.2010 in I.A.No.103 of 2010 in unnumbered Appeal Suit of the year 2010 on the file of the Principal Subordinate Judge, Tindivanam. For petitioner : Mr.R.Sunil Kumar For respondent : Mr.D.S.Thirumavalavan ORDER
The revision petitioner filed application under section 5 of the Limitation Act to condone the delay of 1486 days in re-presenting the first appeal filed by him against the judgment and decree passed in O.S.No.211 of 2004. That application was dismissed and aggrieved by the same, this revision is filed.
2. It is submitted by the learned counsel for the revision petitioner that the first appeal was filed in time and the papers were mistakenly handed over by the counsel appearing for the revision petitioner to another client and those papers were procured only on 14.4.2010 and therefore, the delay has happened in re-presenting the appeal and considering the nature of the suit filed by the respondent, the application may be allowed on terms. He also relied upon the judgment in THE REVENUE DIVISIONAL OFFICER v. m.s.a.ibrahim (2011 (3) CTC 337) and SRIVATASAVA, G.P. v. R.K.RAIZADA (2000 (II) CTC 27 (SC)) in support of his contention.
3. On the other hand, the learned counsel for the respondent submitted that the suit was filed on mortgage and preliminary decree was passed and as against the preliminary decree, the first appeal was filed by the revision petitioner and he did not prosecute the same thereafter and final decree was passed and in the final decree proceedings also, notice was served on the revision petitioner, but, he did not contest the final decree application and thereafter, he filed I.A.No.558 of 2007 in the final decree application I.A.No.411 of 2006 to condone the delay of 113 days in setting aside the ex parte decree and in that application, he has given a different reason ad he has not stated that he was suffering from ailment as stated in the present application and therefore, there is no bona fide on the part of the revision petitioner and considering all these aspects, the court below has rightly dismissed the petition.
4. It is seen from the order of the court below that I.A.No.411 of 2006 was filed for passing final decree and in that application, summons were served on the revision petitioner, but, he did not appear and ex parte final decree was passed. Thereafter, he filed I.A.No.558 of 2007 to condone the delay of 113 days in filing the application to set aside the ex parte final decree passed on 28.2.2007 and in that application, it was stated that the bundle was lost and his relation was not well and therefore, he was not able to appear in court when the final decree application was posted for hearing. Further, the revision petitioner also entered appearance in E.P.No.14 of 2007 filed by the respondent to execute the decree and he also sold the property which is the subject matter of mortgage on 27.10.2006. Considering all these aspects, the court below has rightly held that the delay in re-presenting the appeal by the revision petitioner is wanton and wilful and there is no bona fide and dismissed the application.
5. In the judgment relied upon by the learned counsel for the revision petitioner in 2011 (3) CTC 337 (cited supra), a Division Bench of this Court has condoned the delay holding that if the delay is not condoned, that would cause great prejudice to public exchequer and on that ground, the delay was condoned. Similarly in 2000 (II) CTC 27 (cited supra), the Honourable Supreme Court condoned the delay having regard to the facts of that case.
6. According to me, those two judgments cannot be applied to the facts of this case and as stated supra, the revision petitioner has taken part in the final decree application and also in the execution application and therefore, it cannot be stated that he was not aware of the legal proceedings and though the appeal was filed in time, he has deliberately re-presented the same after a delay of 1486 days and that was rightly considered by the court below and the explanation given by the revision petitioner was not accepted and hence, I do not find any reason to interfere with the findings of the court below. The civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.
23.1.2012.
Index: Yes.
Internet: Yes.
ssk.
To
1. The Principal Subordinate Judge, Tindivanam.
2. The Record Keeper, V.R. Section, High Court, Chennai.
R.S.RAMANATHAN, J.
Ssk.
C.R.P.(NPD) No.509 of 201123.1.2012.