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Madha Firewood Agency Thro its proprietor D. John Francis & Another v/s M/s.South Indian Bank Ltd., rep.by through its Branch Manager Silaiman Branch, Madurai District


Company & Directors' Information:- THE SOUTH INDIAN BANK LIMITED [Active] CIN = L65191KL1929PLC001017

Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- A N JOHN PVT LTD [Active] CIN = U74999WB1950PTC019260

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- T. FRANCIS & COMPANY PRIVATE LIMITED [Strike Off] CIN = U71301DL2011PTC228845

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

Company & Directors' Information:- INDIAN AGENCY PVT LTD [Strike Off] CIN = U51109WB1922PTC004604

Company & Directors' Information:- SOUTH INDIAN BANK LIMITED [Dissolved] CIN = U65191KL1928PLC001011

    C.R.P.(NPD) (MD) No. 1238 of 2009 & M.P.(MD) No. 1 of 2009

    Decided On, 05 December 2018

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Petitioners: R. Suriyanarayanan, Advocate. For the Respondent: C. Jawahar Ravindran, Advocate.



Judgment Text

(Prayer: Civil revision petition is filed, under Section 115 of the Code of Civil Procedure, to set aside the order dated 09.06.2009, passed in C.M.A.No.7 of 2007, on the file of the Additional District Judge (Fast Track Court No.1), Madurai, confirming the order dated 29.01.2007, made in I.A.No.690 of 2006 in O.S.No.240 of 1998, on the file of the 3rd Additional Subordinate Judge, Madurai.)

The civil revision petition is directed against the Judgment and Decree, dated 09.06.2009, passed in C.M.A.No.7 of 2007, on the file of the Additional District Court / Fast Track Court No.I, Madurai, confirming the fair and decreetal orders, dated 29.01.2007, passed in I.A.No.690 of 2006 in O.S.No. 240 of 1998, on the file of the III Additional Subordinate Court, Madurai.

2. The suit has been laid by the respondent / plaintiff against the revision petitioners/ defendants for recovery of money based on the mortgage. It is seen that the revision petitioners had been set ex parte in the abovesaid suit on 08.07.1999 and thereby, a preliminary decree had been passed in the suit. Seeking to set aside the same, the revision petitioners had preferred I.A.No.690 of 2006, under Order IX rule 13 of the Code of Civil Procedure, on the footing that they had not been duly served with the summons and based on the paper application effected, the preliminary decree had come to be passed ex parte on 08.07.1999 and thereafter, only in the application preferred by the respondent / plaintiff for passing the final decree, they had received the notice on 07.06.2006 and thereupon, came to know that the ex parte decree had been passed against them on 08.07.1999 and as no summons have been duly served on them in the suit, the ex parte decree passed against them is not maintainable and therefore, to set aside the ex parte decree, dated 08.07.1999, the abovesaid application had come to be preferred by the revision petitioners / defendants.

3. The respondent / plaintiff resisted the abovesaid application preferred by the revision petitioners / defendants contending that the abovesaid application is barred by limitation and all steps had been taken to effect the service of summons and the Court had ordered paper publication and the same had also been effected and accordingly, the preliminary decree had been passed against the revision petitioners on 08.07.1999 by setting them ex parte and thereafter, the respondent / plaintiff had preferred the application for passing the final decree and the revision petitioners / defendants had deliberately avoided their appearance before the Court for all these years and have come forward with the false application, after more than seven years, on the footing that they had not been duly served with the summons, however, their application, without preferring application for the condonation of the delay of more than seven years, is not maintainable. The revision petitioners / defendants are well aware of the filing of the suit by the respondent / plaintiff and therefore, the application of the revision petitioners / defendants is liable to be dismissed.

4. The abovesaid application of the revision petitioners had come to be dismissed by the Trial Court. On appeal also, the First Appellate Court had confirmed the dismissal of the application of the Trial Court. Impugning the same, the present civil revision petition has been laid.

5. The main contention putforth by the revision petitioners / defendants is that the summons have not been duly served on them in the suit and therefore, according to them, the ex parte decree, dated 08.07.1999, is liable to be set aside and according to them, only on receipt of the notice in the final decree application, they had come to know about the ex parte decree passed against them and therefore, there is no bar of limitation in preferring the application to set aside the ex parte decree and hence, the application.

6. Per contra, it is the case of the respondent / plaintiff that the summons had been duly served on the revision petitioners / defendants and on their remaining absent, despite the service of summons and also the paper publication effected with reference to the same, accordingly, they are not entitled to prefer the application to set aside the ex parte decree, after several years, without filing the application to condone the delay concerning the same and inasmuch as the summons have been duly served on the revision petitioners and they have knowledge about the pendency of the suit, therefore, the application is liable to be dismissed.

7. The First Appellate Court, based on the materials placed on record, particularly, scanning the notes papers of the Trial Court, noted that the summons had been ordered to be issued to the revision petitioners on 17.04.1998, however, the same had not been served upon the revision petitioners, however, further noting that thereupon, on 24.07.1998, private notice had been ordered to be issued to the revision petitioners and based on the said order, the respondent / plaintiff had taken private notice and consequently, the private notice had been served upon the revision petitioners, in connection with the same, the respondent / plaintiff had also produced the acknowledgement cards evidencing the proof of the service of private notice on the revision petitioners and thereby, concluded that the revision petitioners had been duly served in the suit on 02.09.1998 and thereby, held that the revision petitioners had been duly served. Further, also noted that despite the service of notice on the revision petitioners privately, the Court having ordered the paper publication, accordingly, based on the same, the paper publication having also been effected and even thereafter, the revision petitioners having not entered appearance, consequently noted that the revision petitioners have been set ex parte on 08.07.1999 and the ex parte preliminary decree has been passed against them, therefore, concluded that the revision petitioners have been duly served in the suit and they cannot plead that they had not been duly served with the summons in the suit.

8. Based on the abovesaid determination, noting that despite having the knowledge about the pendency of the suit, the revision petitioners having not preferred application to condone the delay in filing the application preferred under Order IX Rule 13 of the Code of Civil Procedure Code, on that premise, holding that the application laid by the revision petitioners, without seeking the condonation of the delay, is legally not sustainable and on that basis also, the Courts below have discountenanced the application preferred by the revision petitioners. Impugning the same, the present civil revision petition has been preferred.

9. It is mainly contended by the revision petitioners' counsel that as per the records available, the summons ordered by the Court dated 17.04.1998, had not been served upon the revision petitioners. No doubt, the said summons had not been served upon the revision petitioners. However, it is seen that thereupon, the Court had deemed it fit to order private notice to the revision petitioners and the same had been effected by the respondent / plaintiff and in this connection, it is seen that the respondent / plaintiff had also produced the acknowledgement cards and by way of the same, when the revision petitioners had been found to be duly served with the summons on 02.09.1998, accordingly, as rightly determined by the First Appellate Court, the revision petitioners are found to have knowledge about the pendency of the suit way back on 02.09.1998. Even thereafter, the Trial Court had deemed it fit to order the paper publication and accordingly, the paper publication having also been effected by the respondent / plaintiff, even thereafter, when the revision petitioners are found to have not shown interest to appear and contest the suit laid by the respondent / plaintiff, resultantly, it is found that the revision petitioners have been set ex parte and the ex parte decree had come to be passed on 08.07.1999. Therefore, the contention of the revision petitioners that the summons had not been duly served on them is unacceptable and when the revision petitioners had not established that the Court is not empowered to order private notice in the fitness of things and furthermore, when the decision of the Court ordering private notice has not been put under challenge and consequently, private notice having been effected and the acknowledgment cards placed on record pointing to the service of the notice on the revision petitioners in the suit, in such view of the matter, as rightly determined by the Courts below, the revision petitioners had been duly served in the suit during 1998 itself and in such view of the matter, they cannot feign ignorance as to the institution of the suit against them by the respondent / plaintiff on the ground that summons had not been duly served on them. When as per the order of the Court, the paper publication has been effected and the same having been carried out, resultantly, even thereupon, the revision petitioners having not chosen to enter appearance and contest the respondent / plaintiff's suit, it is seen that the Courts below are wholly correct in holding that the revision petitioners are having full knowledge about the institution of the suit and also the ex parte decree passed against them, dated 08.07.1999.

10. In the light of the above position, the arguments putforth by the revision petitioners' counsel that the revision petitioners had come to know about the pendency of the suit only on receipt of the notice in the final decree application in the year 2006 as such cannot be accepted. When the materials placed on record go to show that the revision petitioners had knowledge about the institution of the suit and also duly served by taking private notice as ordered by the Court and also paper publication having been effected for their appearance, still, they having not chosen to contest the suit and had come forward with the application to set aside the ex parte decree passed against them, without application to condone the delay of more than seven years, as rightly contended by the respondent / plaintiff, the very basis of the application preferred by the revision petitioners, without the delay condonation application, is found to be legally unsustainable, in such view of the matter, the Courts below are correct in determining that the application preferred by the revision petitioners, without filing the necessary application to condone the delay

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is legally not maintainable and on that ground also, the Courts below are correct in dismissing the application preferred by the revision petitioners. 11. In support of their case, the revision petitioners have placed reliance upon the decision in Nahar Enterprises vs. Hyderabad Allwyn Ltd., and another, reported in (2007) 3 MLJ 253 (SC). The principles of law outlined in the abovecited decision are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 12. In the light of the above discussions, the revision petitioners having been duly served in the suit and having not made out sufficient cause for setting aside the ex parte decree passed against them and furthermore, the revision petitioners having not preferred necessary application for the condonation of the delay, despite having knowledge about the pendency of the suit much earlier, for all the reasons stated above, the impugned Judgment and Decree passed by the Court below do not warrant any interference. 13. Resultantly, the civil revision petition is dismissed with costs. Consequently, connected miscellaneous petition is closed.
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