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2013 DIGILAW 3959 (MAD)

M. Selvaraj v. S. Subramanian

2013-11-20

B.RAJENDRAN

body2013
JUDGMENT 1. The revision petitioner has come forward with this Civil Revision Petition challenging the Order dated 30.04.2013 passed in E.A. No. 1274 of 2013 in E.P. No. 428 of 2011 in O.S. No. 2610 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai by which the petition filed by him under Order XXI Rule 105 (3) read with Section 5 of the Limitation Act to condone the delay of 332 days in filing an application to set aside the exparte order passed in the Execution Petition was dismissed. 2. The learned counsel for the revision petitioner would contend that the respondent herein has filed the suit in O.S. No. 2610 of 2003 for specific performance of the agreement dated 14.07.2000. The suit was decreed on 30.01.2006. However, it was contended on behalf of the revision petitioner that the revision petitioner was not kept informed about the decree passed in the suit or the need to prefer an appeal by his lawyer. Only after much perseverance, the revision petitioner filed an appeal before this Court with a petition for condonation of delay and the appeal was dismissed. Since the revision petitioner has pursued his remedy before this Court there is a delay in filing the application to set aside the exparte order in the execution petition. According to the counsel for the revision petitioner, even in the execution petition notice was not served on the revision petitioner and service of notice was not in accordance with Order V Rule 20 of CPC. Therefore, the learned counsel for the revision petitioner would contend that the delay is neither wilful nor wanton and such delay has to be condoned. However, in the course of argument, the learned counsel for the revision petitioner submits that the order passed in the execution petition itself is vitiated by fraud, even though it was not raised before the trial court. It is further contended that the revision petitioner is having half share in the plaint schedule mentioned property and therefore the decree could not be executed. 3. The learned counsel for the respondent would contend that the suit was filed in the year 2003 and it was decreed on 30.01.2006. The decree passed in the suit was not an exparte decree and it was a contested decree. 3. The learned counsel for the respondent would contend that the suit was filed in the year 2003 and it was decreed on 30.01.2006. The decree passed in the suit was not an exparte decree and it was a contested decree. The main defence raised in the suit was that the suit agreement was not executed in accordance with law, it was vitiated by fraud and it is a document created for the purpose of filing the suit. It was also a defence raised in the suit that there was no consideration received by the defendant/revision petitioner herein. The trial court, on analysis of oral and documentary evidence decreed the suit by concluding that the suit agreement of sale is valid and the consideration was duly received by the defendant/revision petitioner herein. The trial court also held that the plaintiff/respondent herein was always ready and willing to perform his part of the obligation especially when the plaintiff/ respondent herein has filed an application and deposited the balance sale consideration of Rs.1,00,000/- on 31.07.2008. As against the order permitting the plaintiff/respondent herein to deposit the amount, an appeal was filed before this Court in AS SR No. 81776 of 2009 with a delay of 1042 days in filing the same. During the pendency of the appeal, the draft sale deed was filed, for which the defendant/revision petitioner has not raised any objection. Thereafter, the sale deed itself was executed and delivery was taken on 04.10.2013. The defendant/revision petitioner has also filed an application to review the decree passed in the suit and that was also dismissed. Thereafter, E.A. No. 1207 of 2012 was filed for removal of obstructions and that was allowed and delivery was ordered on 29.07.2013. During the course of delivery proceedings, the tenant in the property was set up as an Obstructor and that was overruled and sale deed itself was executed on 02.08.2012. 4. The learned counsel for the respondent further submitted that in the execution petition, notice was sent through court and at that time, there was no one to claim the notice as the door was locked. Therefore, the notice was served by way of affixture. However, the private notice sent to the revision petitioner through registered post with acknowledgment due was returned with an endorsement 'intimation delivered' and inspite of the same, no one claimed the notice. Therefore, the notice was served by way of affixture. However, the private notice sent to the revision petitioner through registered post with acknowledgment due was returned with an endorsement 'intimation delivered' and inspite of the same, no one claimed the notice. The trial court considering the above modes of service has also ordered for paper publication and only thereafter, an exparte order was passed on 22.09.2011. Therefore, the learned counsel for the plaintiff/respondent would contend that the provisions of Order V Rule 20 of CPC has been duly complied with and there is no dispute in so far as service of notice in the execution petition. The defendant/revision petitioner, only to protract the proceedings, has come forward with the present Civil Revision Petition. Further, in the affidavit filed in support of the petition for condonation of 332 days of delay, the defendant/revision petitioner has not assigned any reason for the delay and therefore, the court below is right in dismissing the application for condonation of delay. 5. I heard the counsel for both sides. The main argument advanced by the learned counsel for the defendant/revision petitioner herein is that service of notice in the execution petition was not proper as it was not in compliance with Order V Rule 20 of CPC besides that fraud has been committed in taking delivery of possession. 6. In this context, it is necessary to look in to the written statement filed by the defendant/revision petitioner herein in the suit. In the written statement, the main defence was that the sale consideration was not received and fraud has been committed in filing the suit. The trial court analysed such defence raised on behalf of the defendant/revision petitioner herein and framed an issue. Ultimately, the trial court held that the consideration was received by the defendant/revision petitioner and there is no element of fraud committed by the plaintiff/respondent herein. It was also held that the plaintiff/respondent herein was always ready and willing to perform his part of the contract especially when the plaintiff/respondent filed an application and deposited the balance sale consideration. As against the order allowing the plaintiff/respondent to deposit the balance sale consideration, an appeal was preferred before this Court with delay and it was rejected. Thus, it is evident that the arguments raised before this Court have been raised before the trial court and ultimately it was rejected. As against the order allowing the plaintiff/respondent to deposit the balance sale consideration, an appeal was preferred before this Court with delay and it was rejected. Thus, it is evident that the arguments raised before this Court have been raised before the trial court and ultimately it was rejected. It is also seen from the records that the tenant of the revision petitioner was set up to obstruct the execution proceedings. At that stage, the respondent has filed E.A. No. 1207 of 2012 for removing the obstruction and that was allowed. As against this order allowing the petition filed by the respondent, a review petition was filed by the revision petitioner and that was also dismissed. Thereafter, on 04.08.2012, delivery was taken. On 11.11.2013, delivery was recorded and the execution petition was terminated. At this stage, it is pertinent to point out here that the very same advocate appeared for the revision petitioner has also filed the application for the tenant, as an obstructor, with a prayer not to record delivery. That application was returned by the court below as not maintainable and thereafter delivery was recorded. Therefore, it is clear that the revision petitioner was only interested to drag on the proceedings. Such conduct of the revision petitioner also has to be taken note of. 7. It is seen from the records that before filing the Execution Petition, the respondent has filed E.A. No. 2872 of 2008 and draft sale deed was accepted, but the revision petitioner has not raised any objection. Ultimately, the sale deed was registered on 02.08.2010. The revision petitioner also filed AS SR No. 81776 of 2010 before this Court with a delay of 1234 days in preferring the appeal. The said appeal in AS SR No. 81776 of 2010 was dismissed by this Court on 08.04.2010 itself. Thereafter, the execution petition was filed for delivery of property and ultimately the execution petition was terminated by recording delivery. 8. As rightly pointed out by the court below, in the application seeking condonation of delay, there was no reason mentioned by the revision petitioner. When the revision petitioner participated in the trial of the suit and suffered a decree, he ought to have been vigilant. Moreover, in the execution petition, the private notice sent to the revision petitioner was returned with an endorsement "intimation delivered". When the revision petitioner participated in the trial of the suit and suffered a decree, he ought to have been vigilant. Moreover, in the execution petition, the private notice sent to the revision petitioner was returned with an endorsement "intimation delivered". When intimation was delivered by the postal authorities and the registered post was not claimed by the revision petitioner, it amounts to sufficient service and it is in compliance of Order V Rule 20 of CPC. It is also to be mentioned that inspite of the private notice having been served on the revision petitioner, the trial court, as an abundant caution, ordered for paper publication and only after effecting paper publication, an exparte order was passed in the Execution Petition. Thereafter, delivery was ordered on 12.03.2012. After delivery was ordered, the present application in E.A. No. 1274 of 2013 in E.P. No. 428 of 2011 in O.S. No. 2610 of 2003 was filed without an application under Section 5 of the Limitation Act. When it was rejected by the Registry of the court below, the revision petitioner has filed the application to condone the delay of 332 days in filing an application to set aside the exparte order passed in the Execution Petition. It is seen that the application filed for condonation of delay is bereft of any reasons. In other words, the revision petitioner has not shown sufficient cause for the delay. In any event, there is no valid reason, much less convincing reason assigned for condonation of delay in filing the petition to set aside the exparte order passed in the Execution Petition. Under those circumstance, the court below is right in dismissing the application for condonation of delay. I do not find any reason to interfere with such well considered order passed by the court below. 9. A fervent attempt was made by the learned counsel for the revision petitioner by contending that in the plaint, the description of property given was only a vacant land, however, in the decree as well as execution petition, in the description of property, it was stated that there exists a building. Therefore, the court below ought not to have ordered for delivery of the property. Therefore, the court below ought not to have ordered for delivery of the property. Such an argument advanced on behalf of the revision petitioner cannot be countenanced especially when the revision petitioner has not raised this plea either in the written statement or in the obstruction petition or in the appeal filed before this Court. In any event, this Court is not concerned with such an argument in this Civil Revision Petition. In this revision petition, this Court is only considering as to whether reasons have been assigned for condonation of delay and whether sufficient cause has been shown by the revision petitioner for condonation of delay of 326 days. In any event, as mentioned above, the reasons assigned by the revision petitioner are not convincing and therefore the court below is right in dismissing the application. The order passed by the court below, therefore, does not warrant interference by this Court. 10. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.