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2016 DIGILAW 1448 (MAD)

Pachchaikani v. Sermakkani

2016-04-05

V.M.VELUMANI

body2016
ORDER : This memorandum of Civil Revision Petition has been filed against the order, dated 23.03.2011, passed in E.A.No.10 of 2011 in E.P.No.64 of 2009 in O.S.No.386 of 2006, on the file of the District Munsif Court, Virudhunagar. 2. The petitioner filed E.A.No.10 of 2011 for stay of E.P.No.64 of 2009 on the file of the learned District Munsif, Virudhunagar till the disposal of O.S.No.7 of 2011 filed by one Karuppasamy. The respondent filed O.S.No.386 of 2006 against the petitioner for redemption of mortgage. An exparte decree was passed on 16.07.2007 and the petitioner filed I.A.No.750 of 2009 to condone the delay in filing the application to set aside the exparte preliminary decree passed in O.S.No.386 of 2006. The said application was dismissed. Against that order of dismissal, the petitioner filed C.R.P. (MD).No.1955 of 2010 before this Court. The said CRP is also dismissed on 12.11.2010. The respondent filed E.P.No.121 of 2009 for cancellation of mortgage and the same was ordered. The respondent filed E.P.No.64 of 2009 for taking possession. At that time, the petitioner filed E.A.No.10 of 2011 under Order 21 Rule 26 of C.P.C., for stay of the execution petition, till the disposal of O.S.No.7 of 2011. According to the petitioner his son filed the suit in O.S.No.7 of 2011 for cancellation of judgment and decree, dated 16.07.2007, passed in O.S.No.386 of 2006. The respondent filed counter and opposed the application, on the ground that no appeal has been filed by the petitioner, against the decree, sought to be executed. The application filed by the petitioner, to condone the delay, in filing the petition to set aside the exparte decree was dismissed by the trial Court and the same was confirmed by this Court in C.R.P.(MD).No.1955 of 2016, by the order dated 12.11.2010. The learned Judge considering all the facts and materials and Order 21 Rule 26(1) and Rule 29 of C.P.C., dismissed the application. Against that order, present Civil Revision Petition is filed. 3. The learned counsel for the petitioner contended that the learned Judge erred in holding that the petitioner is not a party in O.S.No.7 of 2011. The learned Judge ought to have seen that O.S.No.7 of 2011, was filed for cancellation of decree passed in O.S.No.386 of 2006, sought to be executed by the respondent. The trial in O.S.No.7 of 2011 is in progress. The learned Judge ought to have seen that O.S.No.7 of 2011, was filed for cancellation of decree passed in O.S.No.386 of 2006, sought to be executed by the respondent. The trial in O.S.No.7 of 2011 is in progress. The learned Judge ought to have waited for the result in O.S.No.7 of 2011. 4. Heard Mr. K.M. Vijayakumar, learned counsel appearing for the petitioner and Mr. M. Ashok Kumar, learned counsel appearing for the respondent and perused the materials available on record. 5. From the materials, it is seen that the respondent obtained a decree of redemption of usufructuary mortgage and in E.P.No.121 of 2007 filed by the respondent, the said mortgage was cancelled. The present E.P.No.64 of 2009 is for taking possession of the mortgaged property. The application in I.A.No.750 of 2009 to condone the delay in filing the application to set aside the exparte preliminary decree, passed in O.S.No.386 of 2006 and C.R.P.(MD).No.1955 of 2016, filed by the petitioner, were dismissed. The petitioner has not filed any appeal against the decree in O.S.No.386 of 2006 passed by the trial court and no stay has been granted in O.S.No.7 of 2011 staying the decree passed in O.S.NO.386 of 2006. The learned Judge considering the scope of Order 21 Rule 26(1) and Rule 29 of C.P.C. in proper perspective and all the materials on record, dismissed the E.A.10 of 2011, filed by the petitioner for stay of the execution petition in E.A.No.64 of 2009 in O.S.No.386 of 2010, till the disposal of O.S.No.7 of 2011. Hence, there is no irregularity or illegality warranting interference by this Court. 6. Accordingly, this Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petition is closed.