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2013 DIGILAW 2938 (MAD)

Rajiv Timothy v. Parasuram

2013-08-14

K.RAVICHANDRA BAABU

body2013
Judgment : 1. The present civil revision petition is filed challenging the order of the court below in dismissing the application filed under Order 9 Rule 13 C.P.C.. The petitioner herein is the defendant in a suit for specific performance filed by the respondent. The said suit in O.S.No.32/2009 on the file of the sub Court, Chengalpet came to be decreed exparte on 10.06.2010. In pursuant to such exparte decree, the plaintiff filed execution petition and the Executing Court also ordered the same and consequently, the sale deed was executed by the Court. Thereafter, the E.P. was closed on 28.06.2011. It is the contention of the petitioner herein that he was not served with notice both in the suit as well as in the E.P. Therefore, he filed an application in I.A.No.334 of 2011 under section 5 of the Limitation Act seeking to condone the delay of 435 days in filing an application under Order 9 Rule 13 C.P.C. to set aside the exparte decree passed on 10.06.2010. After contest, the said application was allowed on 18.09.2012 subject to payment of cost of Rs.2,500/-to the respondent/plaintiff. It is stated that the cost has also been received by the plaintiff on 27.09.2012. The said order passed in I.A.No.334 of 2011 dated 18.09.2012 was not challenged by the respondent/plaintiff and thus, the said order has become final and binding on the parties. Thereafter, the application filed under Order 9 Rule 13 C.P.C. in I.A.No.332 of 2011 was taken up by the court. In the meantime, there was a change of the Presiding Officer at Chengalpet Sub Court. The learned Judge who heard the application rejected the same on the ground that the petitioner, instead of challenging the exparte order made in E.P., has filed the application under Order 9 Rule 13 C.P.C. to set aside the exparte decree that too, after conclusion of the E.P. The learned Judge has also taken note of the fact that the petitioner sold the property in favour of one third party and a suit in O.S.No.196/2011 has also been filed by the subsequent purchaser as against the purchaser of the present respondent/plaintiff. By taking note of all these facts, the learned Judge dismissed the application. Aggrieved against the same, the present civil revision petition is filed. 2. Heard the learned counsels appearing on either side. 3. By taking note of all these facts, the learned Judge dismissed the application. Aggrieved against the same, the present civil revision petition is filed. 2. Heard the learned counsels appearing on either side. 3. The learned counsel for the petitioner submits that the court below is not justified in rejecting the application under Order 9 Rule 13 C.P.C. while allowing the application under section 5 of the Limitation Act especially, when the reasons given under both the applications are one and the same. It is his contention that no notice was served on the petitioner both in the suit as well as in the execution proceedings. 4. Per contra, the learned counsel for the respondent/plaintiff submitted that the court below has rightly dismissed the application by taking note of the subsequent developments. He further contended that after the exparte decree and getting the sale deed executed through court, the respondent/plaintiff also sold the property to third party. Likewise, the petitioner herein has also admitted that he sold the property in favour of one Karthikeyan on 14.09.2011 and a suit in O.S.No.196/2011 is pending between the purchasers from the petitioner and the respondent herein respectively. Thus, he submitted that the petitioner has not made out a case for setting aside the exparte decree. 5. It is not in dispute that the petitioner herein has filed two applications one under section 5 of the Limitation Act and another under Order 9 Rule 13 C.P.C. by raising same contentions and grounds in both applications. It is also an admitted fact that the court below has allowed the application under section 5 of the Limitation Act based on the contention raised in the said application. 6. A perusal of the order passed by the court below in I.A.No.334 of 2011 dated 18.09.2012 passed under section 5 of the Limitation Act would show that the petitioner herein did not have knowledge about the suit. The specific observation of the court below is as follows: "The respondent has not explained in the counter as to the fact that how the respondent has given the so called address of the petitioner in the plaint. Moreover, in the execution petition as well, the same address, as stated in the plaint, was given and an exparte order was also obtained in the execution petition and deed of sale was executed by the court. Moreover, in the execution petition as well, the same address, as stated in the plaint, was given and an exparte order was also obtained in the execution petition and deed of sale was executed by the court. In fact, the petitioner/defendant has been residing at No.33, 2nd street, Teachers Guild Colony, Villivakkam, Chennai 49. When the petitioner has been residing in the abovesaid address, the court does not understand about the so called address given by the respondent/plaintiff in the suit and in the execution petition, as if the petitioner/defendant has been residing in the so called address. From the above narration of facts, it is needless to say that no proper notice was taken both in the suit and in the execution petition to the petitioner/defendant. ....I have been impressed upon by the submission of the learned counsel for the petitioner. When the petitioner did not have knowledge about the suit and he has not appeared in the suit, I am of the view that the reasons attributed for the delay is plausible and sufficient. It is true that the respondent/plaintiff has spent substantial amount towards the court fee of the suit and non judicial stamp papers for getting execution of the sale deed." 7. Further, the learned Judge while considering the said application has also considered with regard to the subsequent development viz.,the execution of the sale deed in favour of the plaintiff. After considering all those aspects, the learned Judge has allowed the application on condition to pay cost of Rs.2,500/-. The said order, is admittedly, not challenged by the respondent/plaintiff and on the other hand, the fact remains that the respondent/plaintiff received cost of Rs.2,500/-and consequently, allowed the said order to become final and conclusive. Therefore, when the petitioner has given the very same reasons both under section 5 of the Limitation Act as well as under Order 9 Rule 13 C.P.C., it cannot be heard to say that the reasons are acceptable under section 5 of the Limitation Act and not acceptable under Order 9 Rule 13 C.P.C. Therefore, I am of the view that the order passed by the Court below in rejecting the application is not sustainable. Since the petitioner has filed application seeking for setting aside the exparte decree, the closure of E.P. in pursuant to the exparte decree may not be a ground to reject the contention of the petitioner. Since the petitioner has filed application seeking for setting aside the exparte decree, the closure of E.P. in pursuant to the exparte decree may not be a ground to reject the contention of the petitioner. Needless to say that the execution proceedings have taken place only in pursuant to the exparte decree. The exparte decree is sought to be set aside, by contending that the petitioner should be given an opportunity to contest the matter on merits especially, when his application is under section 5 of the Limitation Act filed on the same reasons came to be allowed. Hence there is no justification for rejecting the application filed under Order 9 Rule 13 C.P.C. 8. Thus, I am of the view that the order passed by the court below cannot be sustained and accordingly, the same is set aside. Consequently, the I.A.No.332 of 2011 is allowed and the court below is directed to take up O.S.No.32/2009 and dispose of the same on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. Since both the parties have proceeded in respect of the property by way respective sale deeds, they are directed to maintain the status quo till the disposal of suit in O.S.No.32 of 2009. The civil revision petition is allowed. No costs.