Madras High Court
Hariharan vs Arulmighu Dhandayuthapani Swamy ... on 21 August, 2015
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.08.2015
CORAM
THE HONOURABLE MR.JUSTICE P.DEVADASS
C.R.P(NPD)(MD)NO.647 of 2010
and
M.P.(MD)Nos.1 of 2010 and 1 of 2015
Hariharan ...Petitioner/Petitioner/Appellant
.vs.
Arulmighu Dhandayuthapani Swamy Thirukkovil,
Palani,
represented by its Joint Commissioner/
Executive Officer. ..Respondent/Respondent/Respondent
PRAYER
Civil Revision Petition filed under Section 115 of the Civil
Procedure Code against the order and decretal order passed in I.A.No.70 of
2015 in A.S.No.35 of 2015, dated 24.04.2015 on the file of Sub-Court,
Kuzhithurai and to set aside the same.
!For Petitioner : M/s.R.Subramanian
^For Respondent : M/s.R.Devaraj
:ORDER
This Civil Revision Petition arises out of the dismissal of I.A.No.70 of 2015 by the first appellate Court.
2.M.P(MD)No.1 of 2015 is for withdrawal of Rs.1 lakh in the Court deposit, deposited by the revision Petitioner.
3.The revision petitioner became second defendant after the demise of his father. The respondent/Temple is the owner of the property. The defendant is a tenant. The temple moved the Court to eject him by filing the Ejectment suit. Decree for possession has been passed. Delivery also has been obtained.
4.The temple filed O.S.No. 39 of 1996 for recovery of money for use and occupation of the temple property. It was contested by the revision Petitioner. He lost. The temple won. Money Decree was passed. The temple levied execution in E.P.No.13 of 2007.
5.The second defendant filed appeal suit with delay. He also filed I.A.No.11 of 2008 to condone the delay of 1285 days in filing the appeal. It was contested by the Temple. The learned Judge agreed with the view of the temple dismissed the petition. As against dismissal of the same, this Civil Revision Petition has been filed.
6.In this Civil Revision petition, I.A.No.1 of 2015 has been taken out by the decree-holder for payment of arrears. As directed, the Judgement- Debtor deposited Rs.1 lakh in Court deposit. The temple seeks permission to withdraw the money. The Judgement-Debtor wants disposal of the Civil Revision Petition itself.
7.Now the decree is being challenged by way of appeal. But the appeal remains un-numbered, because of not condoning the delay of 1285 days. There are some arguable points in this appeal. Let there be an opportunity for the defendant to argue. Let there be a disposal on merits. Let both shall satisfied by the judgement of a appellate Court.
8.In this view of the matter harpening on the length of delay is of no consequence. We found some sufficient reason.
9.The amount in court deposit namely, Rs.1akh represents the arrears amount as calculated by the temple for use and occupation of temple property. The temple says that still further amount is due. The revision Petitioner says this much is enough. The temple is not satisfied with the said amount. Anyway, it is a matter to be adjudicated in the appeal.
10.After adjudication, if the defendant due to pay more than Rs.1 lakh, the defendant will pay balance, if it is less, excess amount will be returned to the defendant. Both shall wait for the verdict of the first appellate Court.
11.Accordingly, this Court passed the following order:
(i)The Civil Revision Petition is allowed.
(ii)The appellate Court will process the appeal memorandum as per rules.
(iii)M.P(MD)No.1 of 2015 stand allowed.
(iv)The temple is entitled to be permitted to withdraw Rs.1 lakh in Court deposit by filing a proper petition.
(v)Consequently, connected Miscellaneous Petition is closed. No costs.
To
1.The Principal District Judge, Kanyakumari at Nagercoil.
2.The Sub-Judge, Kuzhithurai..