Madras High Court
M/S.Mahalakshmi Textile Mills Ltd vs M.Peter on 26 March, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.03.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN Tr.C.M.P.(MD)No.1 of 2015 and M.P(MD)No.1 of 2015 M/s.Mahalakshmi Textile Mills Ltd., represented by its Managing Director, Door No.6A, Vallabai Road, Chokkikulam, Madurai ... Appellant Vs. 1.M.Peter 2.The ICICI Bank Limited, reprsented by its Manager & Power Agent, Sri Venkatesan Corporate Office, Chennai Unit Plot No.24, South Phase, Ambathoor Industrial Estate, Ambathoor, Chennai. ... Respondents Transfer application filed under Section 24 of the Code of Civil Procedure, to withdraw the review petition in I.A.No.806 of 2014 in C.M.A.No.7 of 2013 from the file of V Additional District Court, Madurai and transfer the same to the file of I Additional District Court, Madurai, to be heard by the same Judicial Officer, who passed order in C.M.A.No.7 of 2013. !For Appellant : Mr.T.R.Jeyapalam ^For Respondents : Mr.S.Devaraj for R2 No appearance for R1 R3 to R7 ? given up :ORDER
The petitioner herein suffered a decree dated 18.06.1997 in O.S.No.421 of 1982 passed by the I Additional Sub Court, Madurai.
2.The decree holders filed E.P.No.315 of 2000 bringing the properties of the petitioner to sale.
3.The first respondent purchased the property in the Court auction sale. While so, the second respondent herein filed E.A.No.571 of 2009 in E.P.No.315 of 2000 before the I Additional Sub Court, Madurai, claiming title to a portion of the property that was sold in Court auction sale to the first respondent.
4.The I Additional Sub Court, Madurai allowed E.A.No.571 of 2009 in E.P.No.315 of 2000 on 12.04.2013.
5.Aggrieved against the sale, the first respondent herein filed C.M.A.NO.7 of 2013 before the V Additional District Court Madurai. The V Additional District Judge, Madurai dismissed C.M.A.No.7 of 2013 on 10.04.2014. While dismissing the C.M.A., on 10.04.2014, the Appellate Court passed the following decree:
?1.that the appeal be and the same is hereby dismissed.
2.that the Decreetal order of the leanred 1st Additional Subordinate Judge, Madurai in E.A.No.5712 of 2009 in E.P.No.315 of 2000 in O.S.No.421 of 1982 order dated 12.04.2013 is hereby confirmed.
3.that the 1st respondent/claim petitioner is the absolute owner of the appeal mentioned property, further the sale certificate dated 31.10.2008 granted in favour of the appellant herein as document No.12/2008 in E.P.No.315 of 2000 in O.S.No.421 of 1982 on the file of the I Sub Court, Madurai is set aside with regard to the property mentioned in appeal petition.
4.that the sale certificate is confirmed with regard to other properties except property mentioned in the appeal petition.
5.that the no costs is allowed.
6.Both side cost list is not filed.?
6.Taking advantage of the clause 4 of the decree, the first respondent herein filed a review petition to review the order dated 10.04.2014 in CMA No.7 of 2013. According to the first respondent herein, in view of the clause 4 of the order, CMA could not have been dismissed and it could have been modified as CMA was allowed partly.
7.In filing the review petition, there was a delay of 70 days. Hence, he filed I.A.No.805 of 2014 to condone the delay in filing the review application to review the order dated 10.0.2014 in CMA No.7 of 2013 on the file of the V Additional District Judge, Madurai.
8.Before deciding the aforesaid I.A.No.805 of 2014, the review application was also numbered in I.A.No.806 of 2014. Hence, the petitioner has filed this transfer application before this Court, seeking of transfer the review application in I.A.No.806 of 2014 to some other Court. It is also stated during the hearing that the learned Judge, who passed the order in CMA No.7 o 2013 is now functioning as I Additional District Judge, Madurai.
9.On 08.01.2015, this Court issued a direction to the V Additional District Judge, to submit an explanation as to why the review application was numbered, before deciding the application to condone the delay was not disposed of. The learned Judge submitted an explanation on 19.01.2015. After perusing the explanation, this Court passed another order dated 12.03.2015, after hearing the learned counsel for the petitioner. The learned Judge in his explanation has stated that it is the usual practice to number both the condone delay application as well as the other applications such as review application.
10.The learned counsel for the petitioner has disputed the explanation given by the learned Judge and has submitted that there is no such practice as stated by the learned Judge. He submitted that if both the applications are taken up and dismissed on the same day, an incongruous situation would arise. It was further submitted that as against the order of dismissal of the condone delay petition, CRP would lie before this Court and as against the order dismissing the application to set aside the exparte order, appeal would lie to the appellate Court and unless the CRP is disposed of, the Appellate Court could not proceed further with the issue.
11.He further submitted that the practice in Civil Courts is that at the first instance the condone delay application is numbered and the same is decided and thereafter only, the other application would be taken up. He relied upon the judgment of this Court in S.Thiruvariamuthu Vs. Southern Railways reported in 2005(5) CTC 460 in this regard.
12.After perusing the said judgment, I passed an order dated 12.03.2015 directing the V Additional District Judge, Madurai to produce I.A. Register to verify as to the alleged practice that was stated in his explanation.
Pursuant to the same, I.A. Register is produced for perusal. On perusal of the same, the learned counsel for the petitioner has pointed out three instances, wherein applications to condone the delay were numbered first and only thereafter, the other applications were numbered and taken up, which are as follows:
?(i)The first instance is relating to I.A.No.55 of 2012 in M.C.O.P.No.225 of 2003, seeking to condone the delay in filing petition for restoration of M.C.O.P.No.225 of 2003 and after allowing of the said petition, the petition to restore M.C.O.P.No.225 of 2003 was numbered as I.A.No.108 of 2012.
(ii)The second instance is that a petition to condone the delay of 995 days in filing application to restore the suit which was dismissed on 07.01.2009 was numbered as I.A.No.90 of 2012 in O.S.No.173 of 2012, whereas, the application to restore the suit is not numbered as I.A.No.91 of 2012 simultaneously.
(iii)The third instance is that a petition to condone the delay in filing application to restore the suit was numbered as I.A.No.189 of 2012 in O.S.No.119 of 2009, whereas, the application to restore the suit is numbered as I.A.No.353 of 2012 after the allowing of I.A.No.189 of 2012.?
13.Further, the learned counsel has submitted that the review application cannot be numbered as an I.A proceeding and it is an independent proceeding. Hence, review application cannot be numbered as I.A.No.806 of 2014. It should be numbered as Review Application, after deciding I.A.No.205 of 2014 seeking to condone the delay in filing review application filed under Section 5 of the Limitation Act.
14.I find some force in the submission made by the learned counsel for the petitioner. Further, he has submitted that E.A.No.571 of 2009 in E.P.315 of 2000 was filed by the second respondent, claiming only certain portion of the property. Either he could get that portion of the property or he could not get that portion of the property in E.A.No.571 of 2009 in the appeal or other proceeding connected therewith. But, while dismissing CMA No.7 of 2013 on 10.04.2014 and while confirming the order dated 12.04.2014 in E.A.No.571 of 2009, the appellate Court held in clause para 4 of the decree that the sale certificate is confirmed with regard to other properties except that were the subject matters of E.A.No.571 of 2009. According to him, Clause 4 of the decree dated 10.04.2014 in C.M.A.No.7 of 2013 is beyond the scope of the prayer made in E.P.No.571 of 2009. The grievance of the petitioner is that he has filed application to set aside the sale in respect of those properties covered in E.P.No.315 of 2000. Thus, clause 4 of the decree referred to above would cause prejudice to him. According to him, in fact, clause 4 has to be deleted in terms of the judgment dated 10.04.2014 in CMA No.7 of 2013.
15.On the other hand, R1 has now sought to modify as if the appeal was partly allowed. Hence, the learned counsel for the petitioner has expressed his apprehension in the way in which the present V Additional District has handled the matter.
16.In view of the aforesaid developments, I am of the view that the petitioner has made out a case. Though notice was ordered to the first respondent, he has not chosen to appear before this Court. The second respondent has no objection to effect transfer to the earlier Judge, who passed order in CMA No.7 of 2013 on 10.04.1014 and now holding the office of I Additional District Judge, Madurai.
17.Hence, this transfer application is allowed and the I.A.Nos.805 of 2014 and 806 of 2014 are hereby withdrawn from the V Additional District Judge and transferred to the file of the I Additional District Judge, Madurai, to dispose the same on merits and in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The I Additional District Judge, Madurai.
2.The V Additional District Judge, Madurai.