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2012 DIGILAW 2508 (MAD)

Valiammal v. Kamala Ammal

2012-06-19

G.RAJASURIA

body2012
Judgment 1. Animadverting upon the order dated 30.10.2007 passed by the Principal District Munsif, Kancheepuram in I.A.No.924 of 2003 in O.S.No.76 of 1981, this civil revision is filed. 2. Heard both sides. 3. In a few broad strokes, the germane facts could be encapsulated thus: (i) The original suit O.S.No.76 of 1981 was filed by the propositus of the respondents, namely, Doraisamy Naicker. Preliminary decree was passed. Thereafter, I.A.No.924 of 2003 was filed for final decree and it was passed on 30.1.2007. (ii) The revision petitioners herein, it appears, filed one I.A. under Order 9 Rule 13 of C.P.C.for getting that final decree set aside on the main ground that it was an ex-parte one. But the said application was returned initially with certain endorsements and ultimately, it was returned as rejected. The endorsements are extracted hereunder for ready reference. "Returned 1) How this petition is maintainable to be stated? Since the final decree has already been passed by this Court on 30.10.2007. 2) Correct short and long cause title to be furnished. 3) Previous counsel no objection endorsement to be obtained. Hence returned Time 2 weeks The case has been disposed off even on 30.10.2007. Hence, not maintainable. Rejected. 4. Being aggrieved by and dissatisfied with the procedure, this revision is focussed on various grounds. However, the learned counsel for the revision petitioners would state that the revision petition has been filed as against the order passed in I.A.No.924 of 2003. 5. At the hearing the learned counsel for the respondents would submit that no revision would lie as against the final decree. Over and above that he would also submit that pending this revision Gopalakrishnan-R2 herein died, leaving behind his legal heirs, so to say, his mother Kamalammal-R1 and also his wife and three children and those non parties herein should be added as parties. 6. The learned counsel for the revision petitioners would submit that when already one of the legal heirs of Gopalakrishnan, namely, Kamalammal is on record, the question of abatement does not arise and before the lower Court he would take steps to implead the other legal heirs of Gopalakrishnan also. 7. 6. The learned counsel for the revision petitioners would submit that when already one of the legal heirs of Gopalakrishnan, namely, Kamalammal is on record, the question of abatement does not arise and before the lower Court he would take steps to implead the other legal heirs of Gopalakrishnan also. 7. In my opinion such a submission could be accepted, as this is only a revision case and furthermore, as correctly pointed out by the learned counsel for the respondents no revision would lie as against the final decree directly to this Court; wherefore, I am of the view that the revision has to be dismissed, as one not maintainable as against the final decree. 8. However, the submission of the learned counsel for the revision petitioners based on the returned application for getting set aside the final decree, I would like to point out that the trial Court was not justified in simply returning the said application on the ground that already final decree was passed and that the application to get aside the ex-parte final decree was not maintainable. Only after disposal of an application, the question of setting aside the ex-parte order/decree would arise. As such, I am of the view that suitable direction could be given as under: 9. The revision petitioners are at liberty to represent the returned I.A., after making necessary corrections, incorporating the names of the necessary parties, within 15 days from the date of receipt of a copy of this order and whereupon the lower Court shall deal with that application on merits untrammelled and uninfluenced by any of the observations made in this order. 10. The civil revision petition is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.