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2023 DIGILAW 2207 (MAD)

Maniammal @ K. Mani v. M. V. Ranjendran

2023-07-03

SUNDER MOHAN

body2023
JUDGMENT (Prayer: Civil Miscellaneous Appeal filed under Section 43 of Rule 1 of Code of Civil Procedure seeking to set aside the fair and decretal order dated 11.11.2022 in E.A.No.1 of 2022 in E.P.No. 181 of 2020 on the file of the III Additional District Judge, Coimbatore.) 1. The above appeal has been filed against an order passed in E.A.No.1of 2022 in E.P.No.181 of 2020 on the file of the learned III AdditionalDistrict Judge, Coimbatore.2. The brief facts leading to the above appeal are as follows:- (a) The appellants are the Judgment Debtors and had suffered adecree in a Suit for Specific Performance in O.S.No.608 of 2012 on the fileof the learned III Additional District Judge, Coimbatore. The first respondentis the Decree holder. He filed E.P.No.5 of 2018 against the JudgmentDebtors for execution of the Sale Deed. Since the appellants did not comeforward to execute the Sale Deed, the Court had executed the registered SaleDeed dated 19.02.2020 in favour of the first respondent. The appealfiled against the decree in O.S.No.608 of 2012 was dismissed on the groundthat there was a delay of 1176 days in filing the appeal. The appellants havenot challenged the said Order passed by this Court. The first respondentthereafter filed E.P.No.181 of 2020 directing the appellants and otherJudgment Debtors to deliver the possession of the property. (b) In the said E.P.181 of 2020, the appellants and other JudgmentDebtors remained exparte and an exparte Order against the appellants was2/8 https://www.mhc.tn.gov.in/judispassed on 06.07.2022. The appellants thereafter filed E.A.No.1 of 2022praying for setting aside the said exparte Order. (c) In E.A.No.1 of 2022, the first respondent herein filed a counterstating that the appellants and other Judgment Debtors have deliberatelyallowed the Court to pass an exparte Order and have filed the petition toset-aside the exparte Order on the next day. The attempt is only to preventthe first respondent from getting possession of the property. (d) The learned III Additional District Judge, Coimbatore found thatthe appellants had deliberately failed to file counter on 06.07.2002 and theirattempt was only to delay the proceedings. Hence, finding that there was nomerit in the application filed by the appellants and the learned III AdditionalDistrict Judge, Coimbatore dismissed the applications filed to set aside theexparte Order. 3. Aggrieved by the said dismissal, the appellants have filed theinstant appeal. 4. Hence, finding that there was nomerit in the application filed by the appellants and the learned III AdditionalDistrict Judge, Coimbatore dismissed the applications filed to set aside theexparte Order. 3. Aggrieved by the said dismissal, the appellants have filed theinstant appeal. 4. The learned counsel for the appellants/Judgment debtors submittedthat on 06.07.2022, the case was posted for counter, before the learned IIIAdditional District Judge, Coimbatore. However, the second appellant whowas taking care of the case could not reach the advocate office in time andinstruct him to file a counter and therefore, non-filing of the counter wasneither deliberate nor wilful and prayed that one more opportunity may begiven to contest the case. 5. The learned counsel for the first respondent/Decree Holder,per contra, submitted that the original Suit was filed for SpecificPerformance of an agreement executed in 2008. The respondent after payingthe sale consideration is unable to enjoy the property. The learned counselfurther submitted that it is now 15 years since the date of agreement.The appellants had challenged the decree in O.S.No.608 of 2012 before thisCourt and this Court had dismissed the appeal at the condone delay stage inC.M.P.No. 417 of 2002 since there was a delay of 1176 days in filing theappeal. The appellants have not challenged the said Order. While so, thedecree had become final. The Execution Petition filed by the first respondentin E.P.No.5 of 2018 was allowed and the Sale Deed also has been registeredagainst the first respondent by the Court. While so, the appellants havedeliberately abstained from the Court Proceedings. Theinstant application to set-aside the exparte order in EP.NO.181 of 2020 isonly to delay the delivery of possession to the respondent and hence, prayedfor dismissal of the appeal. 6. This Court on perusal of the records finds that the appellants whohad suffered a Decree in a Suit for Specific Performance in O.S.No.608 of2012 had failed in their attempt to file an appeal belatedly before this Court.hence, the Decree has become final. The Sale Deed executed in favour of thefirst respondent by the Court pursuant to the order in E.P.No.5 of 2018dated 19.02.2020 was registered as document No.1591 of 2020 on the file ofSub Registrar Office, Mettupalayam. Thereafter, since the appellants did nothand over the possession, the first respondent had to file E.P.No. 181 of2020 for a direction to the appellants and other Judgement Debtors to deliverpossession of the property. The appellants strangely remained exparte in thesaid execution petition. Thereafter, since the appellants did nothand over the possession, the first respondent had to file E.P.No. 181 of2020 for a direction to the appellants and other Judgement Debtors to deliverpossession of the property. The appellants strangely remained exparte in thesaid execution petition. The appellants have not justified their absence andfor not filing the counter on the date of hearing i.e., on 06.07.2022. Hence,this Court finds that the learned III Additional District Judge, Coimbatorehad rightly dismissed the said petition. This Court finds that the Orderpassed by the learned III Additional District Judge, Coimbatore is inaccordance with the law and there is no reason to interfere with that saidOrder. Hence, this Appeal deserves to be dismissed. 7. However, at this Juncture, the learned counsel for the appellantsprayed that some time may be given to handover possession to the firstrespondent herein since one of the appellants had suffered a paralytic attack.Considering the fact the appellants are aged persons and they require time todeliver possession, this Court grants time to hand over possession till31.10.2023. If the appellants fail to deliver possession on or before31.10.2023, it is open to the first respondent to take delivery of thepossession in accordance with law immediately thereafter, as per the order inE.P.No.181 of 2020. 8. With the above observations, this Civil Miscellaneous Appeal isdismissed. No Costs. Consequently, the connected miscellaneous petition isclosed.