Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 3031 (MAD)

Thulasiammal & Another v. V. R. Jayaraman

2008-08-20

S.TAMILVANAN

body2008
Judgment :- This Civil Revision Petition has been preferred against the order, dated 112. 2007 made in C.M.A.No.17 of 2007 on the file of the Principal Sub-Court, Salem, confirming the fair and final order, dated 30.11.2004 made in I.A.No.1842 of 2004 in O.S.No.1962 of 2004 on the file of the I Additional District Munsif Court, Salem. 2. It is an admitted fact that the respondent herein filed the suit in O.S.No.1962 of 2004, seeking specific relief against the revision petitioners / defendants, based on an agreement of sale. The suit was decreed exparte on 23.08.2002. Subsequently, the revision petitioners herein as defendants filed an application before the Additional District Munsif, Salem under Order IX Rule 13 CPC to set aside the exparte decree, dated 23.08.2002. The aforesaid court, considering the facts and circumstances, passed a conditional order, directing the revision petitioners to pay a sum of Rs.500/-towards costs on or before 27.01.2004. However, the conditional order was not complied with by the revision petitioners, hence, the petition was dismissed by an order, dated 30.11.2004. Subsequently, the petitioners herein filed C.M.A.No.17 of 2007, challenging the order, dated 30.11.2004 passed by the Additional District Munsif, Salem before the Principal Sub-Court, Salem. .3. Considering the materials available on record and arguments advanced by both the learned counsel, the Court below has dismissed the Civil Miscellaneous Appeal, by order, dated 112. 2007. Aggrieved by which, this Civil Revision Petition has been preferred by the petitioners / defendants. 4. Mr. T. Murugamanikkam, learned counsel appearing for the revision petitioners submitted that there was a communication gap between the petitioners herein and their counsel appearing before the trial court and which was neither wilful nor wanton and pleaded that any conditional order may be passed to set aside the order, dated 30.11.2004 passed by the Additional District Munsif, Salem. 5. Per contra, Mr. P. Jagadeesan, learned counsel appearing for the respondent / Decree-holder submitted that the learned District Munsif had passed an order, directing the petitioners to pay a sum of Rs.500/-towards costs on or before 27.01.2004, but the conditional order was not complied with, however, the petitioners filed an application only on 26.02.2007. 5. Per contra, Mr. P. Jagadeesan, learned counsel appearing for the respondent / Decree-holder submitted that the learned District Munsif had passed an order, directing the petitioners to pay a sum of Rs.500/-towards costs on or before 27.01.2004, but the conditional order was not complied with, however, the petitioners filed an application only on 26.02.2007. In support of his arguments, the learned counsel drew the attention of this Court to the impugned decreetal order, wherein it has been stated that the Civil Miscellaneous Appeal was filed only on 26.02.2007, nearly three years from the order passed by the court below. Further, the conditional order has not been challenged by the revision petitioners. 6. Learned counsel appearing for the revision petitioners would contend that the order need not be challenged by the revision petitioners, since cost is not disputed. However, the learned counsel contended that due to the rising of the pecuniary jurisdiction, the case was transferred from Sub-Court, Salem to District Court, Salem, due to which, the petitioners could not pay the cost and comply with the order, but as contended by the learned counsel appearing for the respondent, it is clear that the case was pending before the Additional District Munsif, till the date of compliance of the order, subsequently, on 30.01.2004, the suit was transferred to the other court at Salem. .7. It is not in dispute that though the revision petitioners had suffered an exparte decree on 23.08.2002 and filed a petition under Order IX Rule 13 CPC to set aside the same, they have not complied with the conditional order passed by the Additional District Munsif, Salem for the reasons best known them. Only due to the non-compliance of the conditional order, the application filed by the revision petitioners under Order IX Rule 13 CPC was dismissed on 30.11.2004 by the trial court. The petitioners have not taken any steps subsequently, but challenged the order, dated 30.11.2004 only on 26.02.2007, nearly three years after the order, for which, there is no satisfactory explanation from the revision petitioners. Further, it is not in dispute that pursuant to the decree, the respondent / Decree-holder filed Execution Petition. The petitioners have not taken any steps subsequently, but challenged the order, dated 30.11.2004 only on 26.02.2007, nearly three years after the order, for which, there is no satisfactory explanation from the revision petitioners. Further, it is not in dispute that pursuant to the decree, the respondent / Decree-holder filed Execution Petition. As per the order, it is clear that notice was issued to the respondent in the Execution Petition and through the Executing Court, pursuant to the decree, sale deed was executed in favour of the respondent / Decree-holder and he is seeking only delivery of possession of the property. At this stage, the revision petitioners / defendants have preferred this revision. 8. It is a settled proposition of law that in order to maintain the revision petition under Section 115 CPC, the revision petitioners should satisfy the court that the impugned order has been passed by the court below, without jurisdiction or failed to exercise its jurisdiction so vested or to point out any illegality or material irregularity in the impugned order, leading to miscarriage of justice. In this Civil Revision Petition, there is no allegation against the revision petitioner / Decree-holder that he obtained the order by playing fraud on the court or there is any illegality or material irregularity committed by the court below in the impugned order, so as to maintain the revision petition. 9. In such circumstances, I could find no legal ground or reason to interfere with the impugned order, as contemplated under Section 115 of the Code of Civil Procedure and accordingly, the Civil Revision Petition fails. 10. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No order as to costs.