Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
15. 04.2014 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.R.P.(NPD) (MD) Nos.822 of 2014 and C.R.P.(NPD) (MD) Nos. 823 of 2013 and M.P.(MD) Nos.1 & 1 of 2013 B.Rajasingh ... Petitioners in both revision petitions -vs- G.Achuthan ... Respondent in both revision petitions PRAYER (in C.R.P.(NPD) (MD) No.822 of 2013): Civil Revision Petition is filed, under Article 227 of the Constitution of India, against the order, dated 12.04.2013 and made in I.A.No.15 of 2013 in C.M.A.No.6 of 2013, on the file of the Sub-Court, Palani (Camp at Kodaikanal). PRAYER (in C.R.P.(NPD) (MD) No.823 of 2013): Civil Revision Petition is filed, under Article 227 of the Constitution of India, to strike off the civil miscellaneous appeal in C.M.A.No.6 of 2013, on the file of the learned Subordinate Judge, Palani (Camp at Kodaikanal). !For Petitioner : Mr.N.Marivel (in both revision petitions) ^For Respondents : Mr.V.Janakiramulu (in both revision petitions) :COMMON ORDER
The memorandum of civil revision petition in C.R.P.(NPD) (MD) No.822 of 2013 has been directed against the order dated 12.04.2013 and made in I.A.No.15 of 2013 in C.M.A.No.6 of 2013, on the file of the Sub-Court, Palani (Camp at Kodaikanal), whereas another memorandum of civil revision petition in C.R.P.(NPD) (MD) No.823 of 2013 has been filed to strike off the C.M.A.No.6 of 2013, pending on the file of the Sub-Court, Palani (Camp at Kodaikanal).
2. With the parties as well as the subject matter of the memorandum of civil revision petitions are one and the same, they have been consolidated together, heard jointly and are being disposed of in this common order.
3. The revision petitioner herein is the decree holder in the suit in O.S.No.255 of 2007 and the petitioner in the execution proceedings in E.P.No.9 of 2012 on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, whereas the respondent herein is the petitioner in I.A.No.15 of 2013 and the judgment debtor in the execution proceedings.
4. It is manifested from the records that the revision petitioner herein, being the plaintiff, had filed a suit in O.S.No.255 of 2007, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, as against the respondent herein, seeking the relief of declaration and perpetual injunction. That suit was decreed ex parte on 12.03.2008. In order to file an application to set aside the ex parte decree dated 12.03.2008, there was a delay of 201 days and therefore the respondent herein had taken out an interlocutory application in I.A.No.265 of 2009, under Section 5 of Limitation Act, to condone the delay. That application was also dismissed by the Court and challenging the said order the respondent herein had preferred a memorandum of civil revision petition in C.R.P.No.1589 of 2010 on the file of this Court.
5. When the revision petition came up for hearing before this Court, it was brought to the notice of this Court that while dismissing I.A.No.265 of 2009, the Trial Court has observed that the respondent herein is a fictitious person and not the real defendant, who has been arraigned in the suit in O.S.No.255 of 2007 and therefore on that score that application was dismissed. In the Order dated 08.02.2011 and made in C.R.P.No.1589 of 2010, this Court has observed in Paragraph No.7 that the Court below has dismissed the Interlocutory Application No.265 of 2009 mainly on the ground that the present revision petitioner is not the original defendant. Further, this Court has also observed that ".considering the overall circumstances available in the present case, the role of an expert is very much essential. Unless role of an expert is availed in the present case, it is highly impossible to render proper justice and therefore the order passed by the Court below is liable to be set aside"..
6. Since a suspicion was arisen with regard to the genuineness of the respondent/defendant, this Court while allowing the revision petition, had also set aside the impugned order dated 31.03.2010 and made in I.A.No.265 of 2009 in O.S.No.255 of 2007 and the petition was remitted back to the Trial Court, with a direction to the revision petitioner to file a relevant petition so as to utilise the service of an expert for the purpose mentioned supra. The learned District Munsif-cum-Judicial Magistrate, Kodaikanal, was also directed to pass suitable order in I.A.No.265 of 2009, after getting expert's report as well as after analyzing the entire circumstances.
7. Now, it is kept in dark that as to whether the interlocutory application in I.A.No.265 of 2009, which is filed by the respondent/defendant, under Section 5 of the Limitation Act, to condone the delay of 201 days in filing an application to set aside the ex parte decree, dated 12.03.2008, in the above suit, has been disposed of after getting expert's opinion as directed by this Court.
8. In the meantime, on the basis of the ex parte decree, dated 12.03.2008, the revision petitioner, being the plaintiff has filed an execution petition in E.P.No.9 of 2012, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal. Even in that execution petition also it appears that the respondent/defendant had not chosen to appear and therefore an ex parte order was passed on 15.02.2013. In order to set aside the said ex parte order dated 15.02.2003, the respondent/defendant has filed an execution application in E.A.No.1 of 2013 under Order XXI Rule 106 C.P.C., to set aside the ex parte order dated 15.02.2003 and that application was resisted by the revision petitioner/plaintiff.
9. After hearing both sides that execution application was dismissed on 03.04.2013 by the Court of First Instance viz., learned District Munsif-cum- Judicial Magistrate, Kodaikanal, on the ground that no valid reasons are assigned to set aside the ex parte order and since a doubt has been persisting with regard to the identity of the defendant as he has been arraigned in the suit.
10. Challenging the Order of dismissal, dated 03.04.2013, the respondent/defendant has filed a civil miscellaneous appeal in C.M.A.No.6 of 2013, on the file of the leaned Subordinate Judge, Palani (camp at Kodaikanal) and along with that appeal he has also filed an interlocutory application in I.A.No.15 of 2013 under Order XLI Rule 5 C.P.C., for granting interim stay of all further proceedings in E.P.No.9 of 2012 in O.S.No.255 of 2007, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal.
11. While granting interim stay, on 12.04.2012, in I.A.No.15 of 2013, the Lower Appellate Court has observed that if the final order is passed in the execution petition in E.P.No.9 of 2012, the direction issued by the High Court in C.R.P.No.1589 of 2010 could not be complied with by the Trial Court and therefore for the interest of justice, the interim stay was granted till 26.04.2013.
12. Having been aggrieved by the order, dated 12.04.2012, the revision petitioner being the decree holder/plaintiff has preferred the memorandum of civil revision petition in C.R.P.(NPD) (MD) No.822 of 2013 and he has also filed another C.R.P.(NPD) (MD) No.823 of 2013 to strike off the civil miscellaneous appeal in C.M.A.No.6 of 2013, on the file of the learned Subordinate Judge, Palani (Camp at Kodaikanal).
13. Heard Mr.S.Marivel, learned counsel appearing for the revision petitioner as well as Mr.V.Janakiramulu, learned counsel appearing for the respondent and perused the materials available on record.
14. Taking into consideration of the circumstances cumulatively, this Court finds that it may be expedient to dismiss both the memorandum of civil revision petition with a direction to the Lower Court to dispose the civil miscellaneous appeal in C.M.A.No.6 of 2013, within a specific period.
15. In the result: i. C.R.P.(NPD) (MD) No.822 of 2013) is dismissed and the impugned order dated 12.04.2013 and made in I.A.No.15 of 2013 in C.M.A.No.6 of 2013, on the file of the Sub-Court, Palani (Camp at Kodaikanal), is confirmed; and ii. C.R.P.(NPD) (MD) No.823 of 2013) is dismissed as there is no irregularity or abuse of process of Court on the part of the Lower Appellate Court. Further, the learned Subordinate Judge, Palani (Camp at Kodaikanal) is directed to dispose the civil miscellaneous appeal in C.M.A.No.6 of 2013 by the end of June, 2014. Consequently, connected miscellaneous petitions are closed. No costs. To The Sub-Judge, Sub-Court, Palani, (Camp at Kodaikanal).