Madras High Court
Adilakshmi Ammal vs Govindammal on 21 August, 2017
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.08.2017 CORAM: THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(NPD)Nos.975 of 2005 & 327 of 2006 and C.M.P.No.7355 of 2005 Adilakshmi Ammal .. Petitioner in C.R.P.No.975 of 2005 1.Lakshmiammal 2.Narayanasamy .. Petitioners in C.R.P.No.327 of 2006 Vs. Govindammal .. Respondent in both the CRPs. C.R.P.No.975 of 2005 is filed under Section 115 of C.P.C., against the fair and decretal order dated 14.10.2004 passed in I.A.No.645 of 2004 in O.S.No.165 of 2004 on the file of the Principal District Munsif Court, Cuddalore. C.R.P.No.327 of 2006 is filed under Section 115 of C.P.C., against the judgment and decree dated 27.07.2005 rendered in C.M.A.No.7 of 2005 on the file of the I Additional Subordinate Court, Cuddalore, confirming the fair and decretal order dated 14.10.2004 passed in I.A.No.647 of 2004 in O.S.No.165 of 2004 on the file of the Principal District Munsif Court, Cuddalore. For Petitioners : Mr.T.S.Baskaran For Respondent : Not ready in notice ORDER
C.R.P.No.975 of 2005 is filed against the fair and decretal order dated 14.10.2004 passed in I.A.No.645 of 2004 in O.S.No.165 of 2004 on the file of the Principal District Munsif Court, Cuddalore.
2. C.R.P.No.327 of 2006 is filed against the judgment and decree dated 27.07.2005 rendered in C.M.A.No.7 of 2005 on the file of the I Additional Subordinate Court, Cuddalore, confirming the fair and decretal order dated 14.10.2004 passed in I.A.No.647 of 2004 in O.S.No.165 of 2004 on the file of the Principal District Munsif Court, Cuddalore.
3. In respect of C.R.P.No.975 of 2005 is concerned, the learned counsel for the petitioner submitted that the sole revision petitioner died in the year 2010 and her legal heirs have not given any instruction to file a petition to bring them on record and therefore, C.R.P.No.975 of 2005 may be dismissed as abated.
4. Recording the submissions made by the learned counsel for the petitioner, C.R.P.No.975 of 2005 is dismissed as abated.
5. In respect of C.R.P.No.327 of 2006 is concerned, the petitioners are the defendants 4 & 13 and respondent is the plaintiff in O.S.No.205 of 1981 on the file of the Subordinate Court, Cuddalore. The respondent filed the suit for partition. The third defendant filed written statement in the month of December 1981 and is contesting the suit. The respondent let in evidence, filed proof affidavit, she was examined as P.W.1 and the suit was posted for cross examination. The petitioners did not appear for cross examination of P.W.1 and they were set exparte. After contest by other defendants, the suit was decreed on 28.12.1984. The petitioners filed I.A.No.647 of 2004 for setting aside the exparte decree.
6. According to the petitioners, the second petitioner/13th defendant was contesting the case on behalf of both the petitioners. The second petitioner underwent Hernia operation and therefore, they could not appear and contest the suit.
7. The respondent filed counter affidavit and submitted that the decree dated 28.12.1984 is not an exparte decree. The decree was passed on merits and only remedy available to the petitioners is to file an appeal and application to set aside the decree is not maintainable.
8. The learned trial Judge considering the averments made in the affidavit, counter affidavit and materials available on record, dismissed the application holding that the decree dated 28.12.1984 is not an exparte decree and was passed on merits. Against the order of dismissal dated 14.10.2004 passed in I.A.No.647 of 2004, the petitioners filed C.M.A.No.7 of 2005 on the file of the I Additional Subordinate Court, Cuddalore. The learned First Appellate Judge considering the materials available on record, dismissed the appeal confirming the order passed by the learned trial Judge.
9. Against the decree and judgment dated 27.07.2005 made in C.M.A.No.7 of 2005, the present civil revision petition is filed by the petitioners.
10. Heard the learned counsel appearing for the petitioners and perused the materials available on record.
11. From the materials available on record, it is seen that apart from the petitioners, there are other defendants in the suit. The respondent filed suit for partition. The petitioners filed written statement and based on the averments made in the written statement, necessary issues were framed. Apart from these petitioners, the defendants 1,2,8 and 9 contested the suit. The respondent and other defendants let in oral and documentary evidence and considering the said evidence, the decree was passed on merits. In view of the same, the contention of the learned counsel for the respondent that the decree was not an exparte decree and the petitioners ought to have filed an appeal, has considerable force.
12. The Courts below considering all the above facts rightly dismissed the application and appeal by giving cogent and valid reasons. There is no irregularity or illegality, warranting interference with the order and judgment of the Courts below.
13. In the result, C.R.P.No.327 of 2006 is dismissed and C.R.P.No.975 of 2005 is dismissed as abated. No costs. Consequently, connected civil miscellaneous petition is closed.
21.08.2017
Index : Yes/No
dm/kj
To
1.The I Additional Subordinate Judge,
Cuddalore.
2.The Principal District Munsif,
Cuddalore.
V.M.VELUMANI, J.
dm/kj
C.R.P.(NPD)Nos.975 of 2005 & 327 of 2006
and C.M.P.No.7355 of 2005
21.08.2017