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2021 DIGILAW 979 (MAD)

Rangan v. Padmalakshmi

2021-03-18

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : (Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the exparte decree and Judgment passed against dead person in O.S.No.158 of 1999 dated 24.09.2002 on the file of the learned District Munsif, Thiruvotriyur.) 1. The present petition has been posted for 'maintainability'. The present Revision is filed under Article 227 of Constitution of India seeking to set aside the exparte decree and Judgment dated 24.09.2002 in O.S.No.158 of 1999 on the file of District Munsif Court, Thiruvottiyur. 2. The learned counsel appearing for the petitioner relies on the Judgment rendered by the Hon'ble Supreme Court in (2003) 6 SCC 675 [Surya Dev Rai Vs.Ram Chander Rai and Others] and contended that the Revision Petition under Article 227 is maintainable by challenging the Judgment and decree, if the Subordinate Court has committed an error apparent on the face of record. Since the very exparte decree passed by the trial court is total flagrant disregard of Law or Rules of procedure, the petitioners are entitled to approach the constitutional Court under Article 227 by challenging the same, he pleaded. 3. Heard the learned counsel for the petitioners and perused the typed set of papers. 4. It could be seen that originally a suit in O.S.No.828 of 1985 was filed by Ravanammal and Padmalakshmi as against one Kuppammal [the said suit was renumbered as O.S.No.158 of 1999 and transfered to District Munsif Court, Thiruvotriyur] praying for directing the defendant to quit and deliver the vacant possession of the property on the ground that the suit property originally owned by the 1st plaintiff's husband and father of the 2nd plaintiff, one L. Ramakrishnanan, who died on 30.11.1982 leaving behind him, the plaintiffs as his only legal heirs. Thus, the plaintiffs became the absolute owners of the property. The defendant was the tenant under late Ramakrishnanan paying a monthly rent of Rs.5/-, according to english calender month. With regard to the tenancy, the defendant is chronic defaulter in payment of rent and she has not paid the rent for the past three years beginning from December 1982 to November 1985 for 36 months. The rental due is Rs.180/- 5. With regard to the tenancy, the defendant is chronic defaulter in payment of rent and she has not paid the rent for the past three years beginning from December 1982 to November 1985 for 36 months. The rental due is Rs.180/- 5. The plaintiffs alleged to have issued a notice calling the defendant to quit and deliver the vacant possession and since the defendant did not comply with the same, the plaintiffs had filed above said suit and had chosen to approach the court below under Order VII Rule 1 of CPC. The District Munsif Court, Thiruvottiyur by Judgment and Decree dated 24.09.2002 decreed the suit. Thereafter, since the 1st plaintiff died, the 2nd plaintiff filed execution petition in E.P.No.90 of 2010 and pending proceedings in E.P.No.90 of 2010, E.A.No.175 of 2015 was filed by the decree holder under Order 21 Rule 97 of CPC, seeking the intervention of the Court to pass an order for removal of obstructer from the suit property. 6. In the meanwhile, the defendant in O.S.No.158 of 1999, viz., Kuppammal died and subsequently, the legal heirs were impleaded in E.A.No. 175 of 2015. When the E.A. is pending, the present Unnumbered Civil Revision Petition is filed by one Rangan and Nagaraj, son of Venkatesan claiming to be legal heirs of the deceased sole respondent, Kuppammal. 7. The petitioners have filed the present unnumbered Revision Petition to grant leave to file the present Civil Revision Petition on the ground that they were not aware of the proceedings initiated by the said Ravanammal as against their Mother Kuppammal, being the sole defendant in the said suit. Further, they have also claimed that they have not received any communication or summons after the mother Kuppammal died on 21.09.2001. Suppressing the fact that said Kuppammal died in the year 2001, the respondents are trying to execute the exparte decree and had filed E.P.No.90 of 2010, which according to the petitioners is a fraud committed by the said respondents. 8. Heard the learned counsel and perused the entire records. 9. The O.S.No.828 of 1985, which was subsequently renumbered as O.S.NO. 158 of 1999 seems to have been decreed as early as on 24.09.2002 by the District Munsif Court, Thiruvottiyur. 8. Heard the learned counsel and perused the entire records. 9. The O.S.No.828 of 1985, which was subsequently renumbered as O.S.NO. 158 of 1999 seems to have been decreed as early as on 24.09.2002 by the District Munsif Court, Thiruvottiyur. When Execution Petition was filed in E.P.No.90 of 2010, by impleading the present revision petitioners as parties, the said Kuppammal seems to have died and subsequently, E.A.No.175 of 2015 was filed to remove the obstructors under Oder 21 Rule 97 of C.P.C. Pending the said proceedings, the present unnumbered Revision petition is filed by the legal heirs, who have been impleaded in the execution proceedings itself. 10. The present unnumbered Revision Petition, challenging the original Judgment and decree dated 24.09.2002 is not maintainable, as per Section 96 of Civil Procedure Code and the same is extracted hereunder: Section 96: Appeal from original decree. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte . (3) No appeal shall lie from a decree passed by the Court with the consent of parties. [(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten thousand rupees.] 11. Since there is an alternative remedy available to challenge the said Judgment and decree dated 24.09.2002, this Court is of the view that the present Revision Petition, filed only in the year 2021 under Article 227 Constitution of India, only to circumvent the limitation period for filing an appeal. It is seen that the decree is passed in the year 2002 and even if it is an exparte decree, the same can only be challenged in accordance with the procedures contemplated under the Code of Civil Procedure. When there is an alternative remedy available, a supervisory jurisdiction under Article 227 Constitution of India, cannot be set in action until a prima facie case has been made out for proving, abuse of process of law by the court below. When there is an alternative remedy available, a supervisory jurisdiction under Article 227 Constitution of India, cannot be set in action until a prima facie case has been made out for proving, abuse of process of law by the court below. As it is an exparte decree passed in the year 2002, which was known to the petitioners even in the year 2010, when they were impleaded in the E.P.No.90 of 2010, the petitioners cannot maintain the present Civil Revision Petition and this Court is not convinced with the averments raised by the petitioner. The petitioners have not made any prima facie case before this Court for its intervention to invoke Article 227 Constitution of India. Accordingly, the present unnumbered Revision Petition is not maintainable and the same is hereby rejected. No costs.