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2012 DIGILAW 3345 (MAD)

Saroja v. Selvanayagi alias Baby (Minor)

2012-07-27

M.VENUGOPAL

body2012
Judgment :- 1. The Petitioner/2nd Defendant has projected the present Civil Revision Petition as against the order dated 18.02.2005 in I.A.No.1399 of 1998 in O.S.No.98 of 1989 passed by the Learned District Munsif, Tirupur. 2. The Learned District Munsif, Tirupur, while passing the order in I.A.No.1399 of 1998 on 18.02.2005, has, among other things, observed that 'the Petitioner/2nd Defendant has not approached the Court with clean hands and that already I.A.No.986 of 1990 filed under Section 5 of the Limitation Act, 1963 has been dismissed and as such, the present application is not maintainable and consequently, dismissed the same with costs.' 3. It is not in dispute that the Petitioner/2nd Defendant has projected I.A.No.1399 of 1998 before the trial Court inter alia stating that an ex parte decree in O.S.No.90 of 1989 was passed on 13.11.1989 and only after receipt of notice under Order 21 Rule 66 of Civil Procedure Code in execution stage, he has come to know about the passing of the ex parte decree and if the ex parte decree is not set aside and further, if the written statement is not received, it will cause hardship and prejudice to the Petitioner. 4. As against the order dated 25.10.1990 in I.A.No.986 of 1990 dismissing the Section 5 Application filed under Limitation Act, no further proceedings appears to have been taken by the Petitioner/2nd Defendant. The said order in I.A.No.986 of 1990 passed by the trial Court has become final and conclusive one between the parties. 5. A perusal of Order 43 Rule 1(d) of Civil Procedure Code indicates clearly that as against I.A.No.1399 of 1998 filed under Order 9 Rule 13 praying to set aside the ex parte decree and when the said application has been rejected by the Court, then, the remedy is only to prefer a Civil Miscellaneous Appeal before the First Appellate Court. 6. In Law, an order of rejection/dismissal of an application as per Section 5 of the Limitation Act, 1963 merges with the dismissal of the application under Order 9 Rule 13 of Civil Procedure Code as barred by limitation and as such, an appeal against an order of dismissal of an application for setting aside the Ex parte decree is maintainable under Order 43 Rule 1(d) of Civil Procedure Code as per decision in Lamxi Prasad Dubey V. Gulum Ali and Others, AIR 2008 Chhattisgarh 24. 7. 7. To put it differently, the present Civil Revision Petition filed against the order dated 18.02.2005 in I.A.No.1399 of 1998 passed by the Learned District Munsif, Tirupur is not maintainable before this Court. Consequently, the Civil Revision Petition fails. 8. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court viz., Learned District Munsif, Tirupur in I.A.No.1399 of 1998 in O.S.No.90 of 1989 dated 18.02.2005 is affirmed by this Court for the reasons assigned in this Revision. It is made clear that the dismissal of the Civil Revision Petition will not preclude the Revision Petitioner/2nd Defendant to pursue his remedy as against the order dated 18.02.2005 in I.A.No.1399 of 2005 on the file of trial Court before the appropriate forum in the manner known to law.