Madras High Court
Indu @ Indra Arumugam vs / on 6 July, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.07.2015 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(NPD).No.2544 of 2015 and M.P.No.1 of 2015 Indu @ Indra Arumugam ..Petitioner /vs/ 1.P.E.Syed Alivi 2.K.Ragunathan ..Respondents Prayer: Civil Revision Petition is filed under Section 115 of Civil Procedure Code to set aside the order dated 30.04.2015 made in E.A.No.113/2015 in E.A.No.42/2015 in E.A.No.66 of 2014 in O.S.No.381/2010 on the file of the Principal Sub Court, Coimbatore. For Petitioner : Mr.S.Sounthar O R D E R
Civil Revision Petition is filed to set aside the order dated 30.04.2015 made in E.A.No.113/2015 in E.A.No.42/2015 in E.A.No.66 of 2014 in O.S.No.381/2010 on the file of the Principal Sub Court, Coimbatore.
2.The petitioner, who is the defendant in the original suit in O.S.No.381 of 2010 has come forward with this petition stating that he filed an application under Order 21 Rule 26 and also Rule 151 of CPC to stay the proceedings in E.A.No.42/2015 in E.P.No.66/2014 stating the respondents as plaintiffs filed a suit for specific performance and an exparte decree has been passed on 01.11.2012. In pursuance to that, sale deed has been executed and for delivery of possession, E.A.No.42/2015 has been filed. Hence the petitioner filed an application to set aside the exparte decree along with an application under Section 5 of the Limitation Act to condone the delay of 610 days which was yet to be numbered. Since, E.P. Proceedings were pending, the petitioner filed an application to stay the proceedings till the disposal of the application filed to set aside the exparte decree along with the application filed to condone the delay of 610 days under Section 5 of the Limitation Act. But the Trial Court without considering the same, has dismissed the application. Against which, the present revision petition has been preferred by the revision petitioner.
3.At the time of admission, argument of the learned counsel appearing for the petitioner is heard in length.
4.The respondents as plaintiffs filed a suit for specific performance on the basis of the sale agreement dated 23.07.2009. After issuance of notice to the defendant/petitioner herein, suit has been filed for specific performance. The revision petitioner as a defendant entered appearance and filed his written statement. According to the learned counsel appearing for the petitioner, when the matter was posted for cross examination of P.W.1, he had not appeared. Hence, cross-examination has not been done and an exparte decree has been passed on 01.11.2012. After exparte decree has been passed, the respondents herein filed an Execution Petition for execution of the sale deed. Pursuant to that, Sale Deed has been executed by the Court of law. Even though notice has been issued in the Execution Petition, the petitioner/defendant has not entered appearance and filed an application to set aside the exparte decree. But he kept quite all along and after the sale deed got executed, within a year the petitioner has come with the application to set aside the exparte decree along with an application under Section 5 of the Limitation Act to condone the delay of 610 days in filing the application to set aside the exparte decree. According to the learned counsel appearing for the petitioner, the application is yet to be numbered. If that being so, it is the duty of the petitioner to verify whether the application was returned and if it is returned, he should take necessary steps to re-present the same. But he want to take shelter under the same stating that the application is not numbered. Admittedly, the petitioner herein has received notice in the Execution Petition for execution of sale deed. But he kept quite and he has not contested the execution petition. Now, with a malafide intention, he has come forward with the application to set aside the exparte decree along with a petition to condone the delay of 610 days. In such circumstances, I am of the view that only with a view to drag on the proceedings alone, the application has been filed to stay the execution proceedings till the disposal of the application filed under Section 5 of the Limitation Act and also the application filed under Order 9 Rule 13 CPC, which shows his malafide intention to drag on the proceedings and prevented the decree holder to enjoy the fruits of the decree. Hence, I do not find any merits in the revision petition and the revision petition is hereby dismissed.
5.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
06.07.2015 Index:Yes/No Internet:Yes/No cse To The Principal Sub Court, Coimbatore.
R.MALA, J.
cse C.R.P.(NPD) No.2544 of 2015 and M.P.No.1 of 2015 06.07.2015