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2013 DIGILAW 2434 (MAD)

Munikrishna Reddiar v. Settu

2013-07-12

K.RAVICHANDRA BAABU

body2013
JUDGMENT :- 1. This civil revision petition is filed against the order made in I.A.No.68 of 2010 in O.S.No.207 of 2010 whereby the Court below has rejected the application filed by the petitioner under Order IX, Rule 13 of C.P.C. to set aside the exparte decree passed on 22.12.2004. 2. Before going into the merits of the matter, it is the preliminary objection of the learned counsel appearing for the respondent that the present civil revision petition is not maintainable as against the order of dismissal made in the application filed under Order IX, Rule 13 C.P.C. It is his submission that only an appeal as contemplated under Order XLIII, Rule 1(d) of CPC is maintainable before the competent Appellate Court and as such, this civil revision petition is not maintainable. 3. Mr. Lakshmi Narayanan, learned counsel appearing for the petitioner submitted that this civil revision petition is filed only because, the Court has rejected the application without returning the same for presenting it with an application under Section 5 of the Limitation Act if there is any delay. It is his further case that the petitioner has filed the application within 30 days from the date of his knowledge of the exparte decree passed in the suit. 4. Whatever may be the contention of the petitioner, the fact remains that he has filed the application before the Court below under Order IX, Rule 13 of C.P.C. seeking to set aside the exparte decree dated 22.12.2004. The Court below has rejected the application based on certain findings. If at all, the petitioner is aggrieved against the said order and findings rendered therein, his remedy lies before the Appellate Court by filing an appeal under Order XLIII, Rule 1(d) of CPC and not by way of filing the civil revision petition under Section 115 of CPC. Therefore, I am of the firm view that the civil revision petition is not maintainable and accordingly, the same is dismissed as not maintainable. Consequently, M.P.No. 1 of 2011 is dismissed. No costs. 5. However, it is made clear that the dismissal of the civil revision petition would not preclude the petitioner from filing a regular appeal before the Appellate Court under Order XLIII, Rule 1(d) of CPC. Consequently, M.P.No. 1 of 2011 is dismissed. No costs. 5. However, it is made clear that the dismissal of the civil revision petition would not preclude the petitioner from filing a regular appeal before the Appellate Court under Order XLIII, Rule 1(d) of CPC. As and when any such appeal is preferred by the petitioner before the Appellate Court, the said Court will consider the question of limitation by taking note of the fact that the petitioner has approached this Court by way of filing the civil revision petition and the same was pending till this day. 6. Learned counsel for the petitioner further seeks for return of the original order made in I.A.No.68 of 2010 in O.S.No. 207 of 2001. 7. Registry is directed to return the said order to the petitioner forthwith on proper acknowledgement.