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2022 DIGILAW 2433 (MAD)

Devagi v. Asha

2022-07-29

R.N.MANJULA

body2022
ORDER : (Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 27.09.2021, passed in I.A.No.531 of 2017 in O.S.No.162 of 2011, by the Hon'ble Subordinate Judge, Arakkonam.) This Civil Revision Petition has been preferred to set aside the fair and decreetal order dated 27.09.2021, passed in I.A.No.531 of 2017 in O.S.No.162 of 2011, by the learned Subordinate Judge, Arakkonam. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent and also perused the materials placed on record. 3. The petitioners are the legal heirs of the defendant in the suit in O.S.No.162 of 2011. The respondent/plaintiff filed a suit against the deceased defendant for specific performance. Since the deceased defendant remained exparte, the suit was decreed exparte on 06.03.2012. The decree was subsequently executed and the sale deed was also executed through the Court on 04.01.2018. The deceased defendant has filed a petition to set aside the exparte decree in I.A.No.532 of 2017, along with a petition in I.A.No.531 of 2017, to condone the delay of 2051 days. Both the petitions were dismissed by a common order of the learned Subordinate Judge dated 27.09.2021. Aggrieved over that, the petitioners have filed this Civil Revision Petition. 4. The learned counsel for the petitioners submitted that the petitioners came to know about the decree passed in the suit only when they got the notice in the execution proceedings and they could not immediately file a petition to set aside the exparte decree due to lack of material particulars. After verifying the original bundle through the learned counsel, the petitioners filed a petition to set aside the exparte order along with a petition to condone the delay. 5. At the time when the Civil Revision Petition was admitted, the learned counsel for the petitioners presented certain grounds before this Court. The first ground is that even when the petition was filed for condoning the delay in filing the petition to set aside the exparte order, the execution proceedings were pending, despite the judgment is not a speaking one. The second ground is that when the learned counsel reported no instructions, the Court ought to have issued notice to the parties. 6. In support of his above contentions, the learned counsel for the petitioners cited the following judgements: 1. R.Stella Vs. The second ground is that when the learned counsel reported no instructions, the Court ought to have issued notice to the parties. 6. In support of his above contentions, the learned counsel for the petitioners cited the following judgements: 1. R.Stella Vs. V.Antony Francis (2019 SCC Online Mad 24941). 2. Prabu Vs. Ramaiya and Others (C.R.P (NPD) No.3994 of 2016 and C.M.P.No.20197 of 2016 dated 26.03.2021). (i) In the judgment of R.Stella Vs. V.Antony Francis (2019 SCC Online Mad 24941) the following observation has been made: “19. It is clear from the above judgments that where the defendant contests a suit or submits himself to a decree, it is the bounden duty of the Trial Court to follow the procedure under Order XX Rule 4 of the Civil Procedure Code, by giving the concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. If this is not satisfied and a cryptic unreasoned judgment is passed, it is ex-facie illegal. When a Court considers an application for delay to set aside the exparte decree, this must also be taken into consideration. If the original judgment itself is ex facie illegal, it cannot be allowed to continue and under such circumstances, it will have a bearing, while the Court considers an application to condone the delay to set aside the exparte decree. The Court need not have a pedantic approach in this regard, since it involves the substantial right of the parties.” (ii) In the case of Prabu Vs. Ramaiya and Others (C.R.P (NPD) No.3994 of 2016 and C.M.P.No.20197 of 2016 dated 26.03.2021, it is held as under: “10. The Order XX Rule 4 CPC would clearly state that the judgment of the Court shall contain a concise statement of the case, the points for determination, the decision there on and the reasons for such decision. Therefore, the above judgment passed by the Court below does not conform with these requirements as provided under Order XX Rule 4 CPC and does not reflect the issues involved in the present case. The judgment passed by the Court below is cryptic, without following the procedure as contemplated under Section 2(9) of CPC. 11. Therefore, the above judgment passed by the Court below does not conform with these requirements as provided under Order XX Rule 4 CPC and does not reflect the issues involved in the present case. The judgment passed by the Court below is cryptic, without following the procedure as contemplated under Section 2(9) of CPC. 11. In sofar as the delay is concerned that the suit is filed for declaration and as if the Trial Court considered the delay petition in a liberal manner and it has to be decided on merits. The petitioner categorically stated that he suffered Jaundice and he took native treatment. Therefore, he could not appear before the Trial Court. Therefore, the length of delay is no matter and sufficiently of the explanation is the relevant criteria. This Court finds that the ex-parte judgment passed by the Trial Court is not in consonance with Order XX Rule 4(ii) of CPC. Therefore, this Court has no hesitation to invoke the powers under Article 227 of the Constitution of India to set aside the exparte judgment and decree dated 29.08.2009 passed by the District Munsif, Sankari.” 7. By citing the above judgements, the learned counsel for the petitioners submitted that the decree passed by the learned Trial Judge on 06.03.2012, is not a valid decree. Since it is not in conformity with Order XX Rule 4, a liberal view should be taken to condone the delay in filing the petition to set aside the exparte decree. 8. It is seen from the judgment of the learned Trial Judge made in O.S.No.162 of 2011 that the respondent/plaintiff had filed 21 documents to prove his entitlement to get the relief of specific performance. But, the learned Trial Judge without discussing the relevancy of the documents had passed a cryptic judgment and decreed the suit. Even if the written statement is not filed the plaintiff has a duty to prove that he is entitled to the relief prayed. It would have been better, if the learned Trial Judge himself has framed some point for consideration and given reason for deciding it in favour of the plaintiff. Though there is no disagreement on the point that a cryptic order is not in conformity with Order 20 Rule 4 and 5, hardship caused to the plaintiff due to his long slumber cannot be taken lightly. 9. Though there is no disagreement on the point that a cryptic order is not in conformity with Order 20 Rule 4 and 5, hardship caused to the plaintiff due to his long slumber cannot be taken lightly. 9. During the course of the arguments, the learned counsel for the petitioners submitted that the petitioner is willing to deposit the entire sale consideration received by the deceased first defendant along with interest and also the expenses incurred by the respondent/plaintiff towards purchasing the stamp duty for getting the sale deed executed thorough Court along with cost. 10. Considering the said submission and also the loss of time and money suffered by the respondent/plaintiff, I feel that this petition should be allowed on condition. 11. In the result, this Civil Revision Petition stands allowed and the order passed by the learned Subordinate Judge, Arakkonam, dated 27.09.2021, in I.A.No.531 of 2017 in O.S.No.162 of 2011, is set aside and I.A.No.531 of 2017 is allowed on the condition that the revision petitioners shall deposit the entire sale consideration along with interest at the rate of 10% per annum from the date of sale agreement till this date in the trial court account and to pay a cost of Rs.25,000/- along with stamp duty expenses directly to the respondent within a period of 15 days from the date of receipt of a copy of this order, failing which I.A.No.531 of 2017 will stand dismissed automatically. Consequently, connected Miscellaneous Petition is closed.