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2004 DIGILAW 902 (MAD)

A. Amirthabai & Others v. Kanakaraj & Others

2004-07-15

V.KANAGARAJ

body2004
Judgment :- The above Civil Revision Petition has been filed praying to set aside the fair and decretal order dated 20.2.2004 made in E.A.No.157 of 2002 in E.P.No.118 of 2001 in O.S.No.53 of 1996 by the Court of Principal District Munsif, Kuzhithurai. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the revision petitioners have filed the suit in O.S.No.53 of 1996 before the Court of District Munsif, Kuzhithurai as against the respondents for demarcation and declaratory injunction and the same having been decreed, the respondents have preferred an appeal in A.S.No.130 of 2001 before the Court of Subordinate Judge, Kuzhithurai and on the said appeal also having been dismissed thereby confirming the judgment and decree of the trial Court, the decree-holders have filed E.P.No.118 of 2001 before the Court of District Munsif, Kuzhithurai. It further comes to be known that during the pendency of the said E.P., the decree-holders have filed a petition in E.A.No.18 of 2002 to dispense with notice to the unwanted defendants/respondents in the execution petition, who remained exparte in the trial Court i.e. defendants 2 and 3, who are respondents 1 and 2 herein and the said petition was allowed by the trial Court on 24.1.2002. Thereafter, the respondents 1 and 2 herein have filed a petition in E.A.No.156 of 2002 under Section 5 of the Limitation Act praying to condone the delay of 149 days in presenting the petition for review of the order dated 24.1.2002 in E.A.No.18 of 2002 and since the said petition has been allowed by the Court below, aggrieved, the decree-holders have come forward to file the above civil revision petition on certain grounds as brought forth in the grounds of revision. 3. 3. During arguments, the learned counsel for the petitioners would submit that to the Execution Proceedings, Section 5 of the Limitation Act is not applicable under Order 21 of the C.P.C. In support of his contention, the learned counsel for the petitioners would cite a judgment delivered in M.PONNUPANDIAN vs. SELVABAKIYAM AND OTHERS reported in (2003) 3 M.L.J. 590 wherein a learned single Judge of this Court has held: "It is well settled now that Section 5 of the Limitation Act, 1963 is not applicable to the petition filed for setting aside the orders passed ex parte under Rule 106 of O.21 C.P.C." Citing the above judgment, the learned counsel for the petitioners would pray to set aside the order of the Court below. 4. On the contrary, the learned counsel for the respondent would point out that the application has been filed only to condone the delay in filing the review application and not in the execution proceedings and the Court below, in appreciation of all the facts and circumstances of the case, has allowed the petition thus affording an opportunity for the respondents to contest the main case wherein there substantial rights are involved and would pray to dismiss the above civil revision petition. 5. In consideration of all the facts and circumstances of the case, this Court is able to assess that the petition has been filed praying only to condone the delay in filing the review application and not in the execution proceedings. Therefore, the judgment cited on the part of the learned counsel for the respondents do not have any bearing on the subject and hence the same need not have to be adopted by this Court. 6. So far as the delay of 149 days is concerned, the lower Court, for reasons assigned, has allowed the said application since the judicial trend at present is that the delay should not defeat the substantial rights of parties and it is always desirable to permit such petitions unless the delay is of such nature that it cannot be permitted to occur in certain rare cases. Since the delay pointed out regarding the above subject before the lower Court falls within the rules and not as an exceptional case, the condonation of the same by the lower Court is quite correct and falling in line with the principles governing the delay condonation and hence the following order: In result, (i) the above civil revision petition does not merit acceptance and the same becomes liable only to be dismissed and is dismissed accordingly. (ii) The fair and decretal order dated 20.2.2004 made in E.A.No.157of 2002 in E.P.No.118 of 2001 in O.S.No.53 of 1996 by the Court of Principal District Munsif, Kuzhithurai is hereby confirmed. However, in the circumstances for the case, there shall be no order as to costs. Consequently, C.M.P.No.7561 of 2004 is also dismissed