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2005 DIGILAW 473 (MAD)

Saraswathi & Others v. Thangaraj Nadar & Another

2005-03-19

R.BANUMATHI

body2005
Judgment :- (Prayer:This Civil Revision Petition is filed against the fair and decreetal order dated 7.07.2000 made in unnumbered CF.No.4313/2000 in O.S.No.373/79 on the file of the II Additional District Munsif, Kuzhithurai.) This Revision is preferred against the fair and decreetal order dated 7.7.2000 made in unnumbered CF.No.4313/2000 in O.S.No.373/79 on the file of the II Additional District Munsiff, Kuzhithurai. 2.Relavant facts necessitated for disposal of the Revision Petition could briefly be stated thus: - The suit in O.S.No.373/79 relates to S.No.355 of Nattalam Village to an extent of 1.76 cents. The Plaintiffs – Nallthambi Nadar son of Pappu Nadar, Thankaraj Nadar and Selvaraj have filed O.S.No.373/79 for partition and allotment of their 34 cents in the suit S.No.355. The case of the Plaintiffs is that the First Plaintiff has purchased an extent of 22 cents on 22.8.1124 M.E. By the sale deed dated 14.11.56, the First Plaintiff has purchased 3 cents in the suit properties thus the First Plaintiff has got title and possession over 25 cents in the suit property. The Second Plaintiff who is the son of First Plaintiff had purchased 9 cents in the suit property by the sale deed dated 8.7.65 thus the Plaintiffs are entitled to total extent of 34 cents by the sale deeds. 3.The Defendants 2 to 4 are the sons of D1. Resisting the suit the Defendants 1 to 3 have filed Common Written statement stating that D1 has purchased 1.21 acres in the S.No.355. D2 is entitled to 22 cents and D3 is entitled to 3 ½ cents. D4 has filed separate Written Statement claiming that he is entitled to 10 ½ cents. D11 and D32 to D34; D13, D14, D24; D29 to D31 and D23 were found entitled to the extent of property as noted below: - Plaintiff . . 0.34 acres D11 and D32 to D34 . . 0.8 ½ acres D13 . . 0.21 1/3 acres D14 and his son Raja . . 0.11 11/12 acres D15 . . 0.14 acres D16 . . 0.18 1/6 acres D24 . . 0.8 ½ acres D29 to D31 . . 0.5 ½ acres D23 . . 0.5 ¼ acres From the judgment it is seen that existing Tenants D13 to D16; D11, D32 to D34; D24; D29 to D31; D23; appeared before the Trial Court and the other Defendants including D1 to D4 were set exparte. 0.18 1/6 acres D24 . . 0.8 ½ acres D29 to D31 . . 0.5 ½ acres D23 . . 0.5 ¼ acres From the judgment it is seen that existing Tenants D13 to D16; D11, D32 to D34; D24; D29 to D31; D23; appeared before the Trial Court and the other Defendants including D1 to D4 were set exparte. After consideration of the pleadings in the plaint and the contesting defendants and the evidence adduced on their behalf the learned Additional District Munsif, Kuzhithurai has found the parties are entitled to the extent of property as noted above in para 3 and passed the preliminary decree for partition (6.2.97). 4.The Second Defendant Gnanakkon Nadar died on 5.8.99. He filed the written statement and he was alive till the preliminary decree for partition was passed. The Revision Petitioners are the Legal Heirs of the Second Defendant – Gnanakkon Nadar. For dividing the property and for passing of the final decree I.A.38/2000 was filed by the Plaintiff. The Revision Petitioners, the legal heirs of the Second Respondent, were impleaded as Respondents in I.A.No.38/2000. After receipt of the summons in final decree application the Revision Petitioners herein have filed unnumbered C.F.4313/2000 to condone the delay of 1288 days for filing the Petition under Order 9 Rule 13 CPC to set aside the preliminary decree dated 6.2.97. According to the Revision Petitioners the judgment and the preliminary decree dated 6.2.97 is an exparte decree passed against the defendants 1 and 2 and is to be set aside. 5.The Application, filed by the Revision petitioners Under Section 5 of the Limitation Act to condone the delay of 1288 days, was dismissed without being numbered. Upon consideration of the contentions of the Revision Petitioners the learned District Munsif, Kuzhithurai found that the judgment dated 6.2.1997 is an exparte decree and which has been passed upon consideration of the rival contentions of the parties who adduced evidence and the Revision Petitioners cannot file an Application treating the same as an exparte decree and on those findings the Petition was dismissed. 6.Aggrieved over the dismissal of the Petition the Revision petitioners have preferred this Revision. It is contended that the impugned order is erroneous and unsustainable and that the Revision petitioners as the Legal Representatives of Nallathambi Nadar are to be given an opportunity to putforth their entitlement. 6.Aggrieved over the dismissal of the Petition the Revision petitioners have preferred this Revision. It is contended that the impugned order is erroneous and unsustainable and that the Revision petitioners as the Legal Representatives of Nallathambi Nadar are to be given an opportunity to putforth their entitlement. 7.As rightly found by the learned District Munsif, the judgment and the preliminary decree dated 6.2.97 is an exparte decree. The judgment and the preliminary decree for partition is a well considered one, holding the entitlement of each of the contesting defendants. It is to be noted that at the time of passing of the preliminary decree the said Nallathambi Nadar was alive. D1 to D3 have filed common written statement. But no convincing reason is stated as to why the Defendants 1 to 3 (who filed written statement) have not contested the suit. When the Second Defendant has not contested the suit and allowed the preliminary decree to be passed, it is not open to the Revision petitioners/Legal Representatives of the deceased, Nallathambi Nadar, to challenge the preliminary decree for partition, which has been passed after contest, by terming the same as 'exparte decree'. The Application under Order 9 and Rule 13 cannot at all be maintained. In that view of the matter the learned District Munsif, Kuzhithurai was right in not admitting the Application to condone the delay of 1288 days in filing the Petition (Under Order 9 Rule 13 CPC) to set aside the exparte decree. The impugned order does not suffer from any infirmity warranting interference. This Revision has no merits and it is bound to fail. 8.Accordingly this Civil Revision Petition is dismissed. There is no order as to costs. Consequently, connected C.M.P.No.14712/2000 is also dismissed.