Madras High Court
Poomathi vs M.Sethuraman on 11 October, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.10.2018
CORAM
THE HONOURABLE MR. JUSTICE G.R.SWAMINATHAN
C.R.P(MD)(NPD).No.1476 of 2016
and
C.M.P(MD).No.7225 of 2016
Poomathi ... Petitioner
vs.
1.M.Sethuraman
2.Meenal
3.K.R.Mani
4.C.D.Ananthavalli
5.C.D.Periasamy ...Respondents
(cause title accepted vide Court order dated 27.01.2016
made in C.M.P.No.501 of 2016 in CRP(MD).SR35518 of 2015)
PRAYER: Petition filed under Section 115 of the Code of Civil Procedure, to
reverse and set aside the order made in E.A.No.15 of 2011 in E.P.No.8 of 2010 in
O.S.No.171 of 1985 to the Court of the learned District Munsif, Devakottai dated
03.02.2015 and allow the said petition.
For Petitioner : Mr.M.S.Balasubramania Iyer
For Respondents : Mr.S.M.Sanjay
ORDER
One sethuraman filed O.S.No.171 of 1985 before the District Munsif Court, Devakkottai, seeking the reliefs of declaration and recovery of possession. The http://www.judis.nic.in 2 said suit was dismissed. Against which, the plaintiff filed appeal in A.S.No.41 of 1993 before the Sub Court, Devakottai. The said appeal was allowed and the suit was decreed. Thereafter, the defendants filed second appeal in S.A.No.1417 of 1995 before this Court. It was dismissed for default. Therefore, to enforce the decree, the plaintiff filed an execution petition in E.P.No.8 of 2010. In the said execution petition, one Kaliammal filed a claim petition in E.A.No.15 of 2011 through her Power of Agent. Subsequently, the said Kaliammal passed away and her daughter by name, Poomathi stepped in to her shoes or shall we says, slippers. The Court below dismissed the claim petition on 03.02.2015. Challenging the same, this Civil Revision Petition has been taken out.
2.Heard the learned counsel on either side.
3.This Court posted the specific question to the learned counsel appearing for the revision petitioner as to whether the revision petitioner/claimant was justified in filing a petition under Section 47 C.P.C. The learned counsel in all fairness submitted that Section 47 C.P.C., would not be applicable in this case and that the petitioner had actually invoked the jurisdiction of the Executing Court available only under Order 21 C.P.C. He would further contend that misquoting a legal provision cannot vitiate the proceedings and that it was rather the duty of the Court below to apply the http://www.judis.nic.in 3 correct provision of law. If the petition had been filed under Section 47 CPC., then this Civil Revision Petition would lie. Since Section 47 CPC., is not applicable in this case, the order dismissing the claim petition is to be construed as a decree and is therefore, appealable before the First Appellate Court.
4.In this view of the matter, this Civil Revision Petition is closed as not maintainable. The Registry is directed to return the certified copies filed by the revision petitioner along with this Civil Revision Petition. If the revision petitioner presents the same before the First Appellate Court, within a period of two weeks from the date of receipt of a copy of this order, the First Appellate Court shall number the same as the Civil Miscellaneous Appeal, without reference to limitation. Since the suit is of the year 1995, the First Appellate Court shall dispose of the said appeal on merits and in accordance with law, within a period of six months, thereafter. No costs. Consequently, connected Miscellaneous Petition is also closed.
11.10.2018 Index : Yes / No Internet: Yes / No rmk http://www.judis.nic.in G.R.SWAMINATHAN,J., 4 rmk To
1.The District Munsif, Devakottai.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
C.R.P(MD)(NPD).No.1476 of 2016 11.10.2018.
http://www.judis.nic.in