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T.V. Ambikapathy & Others v/s S.N. Subramaniam & Another

    C.R.P.(NPD). Nos. 2301 & 2302 of 2010

    Decided On, 11 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Petitioners: C.K.M. Appaji, Advocate. For the Respondents: D. Venkateswarulu, R1 & R2, No Appearance.



Judgment Text

(Prayer: C.R.P.(NPD) No.2301 of 2010: Civil Revision Petition filed under Article 227 of the Constitution of India against the Docket order passed in unnumbered I.A.(SR).No.1282 of 2005 in O.S.No.6 of 2001, dated 01.04.2010 on the file of the learned Sub Judge, Ponneri, Thiruvallur District, dismissing the set aside petition to set aside the ex parte Judgment and decree dated 16.02.2005 in O.S.No.6 of 2001 filed by the petitioners under Order IX Rule 13 of the Code of Civil Procedure.

C.R.P.(NPD) No.2302 of 2010: Civil Revision Petition filed under Article 227 of the Constitution of India against the Docket order passed in unnumbered I.A.(SR).No.1283 of 2005 in O.S.No.6 of 2001, dated 01.04.2010 on the file of the learned Sub Ju

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dge, Ponneri, Thiruvallur District, dismissing the petition to bring bring the revision petitioners on record as legal representatives of the 1st defendant in O.S.No.6 of 2001 filed by the revision petitioners under Order XXII Rule 4(2) of the Code of Civil Procedure.)

Common Order

1. Since the two applications which are impugned in the above Civil Revision Petitions arise out of a single suit, the two petitions are tried together and a common order is being passed.

The brief facts of the case are as follows:

2. The 1st respondent herein had filed a suit O.S.No.6 of 2001 against one Vivekanandam, who is the father of the petitioners herein and the 2nd respondent for declaration of title to the suit schedule property and for recovery of possession. The 1st respondent had based his claim over the suit property upon a Sale Deed dated 25.01.1993 registered as Document No.125/1993 on the file of S.R.O., Thiruvottiyur, executed by the 1st defendant Vivekanandam in his favour. The 1st respondent had further pleaded that at the time of sale, the said Vivekanandam and the 2nd respondent herein had requested him to permit the 2nd respondent to continue to live in the suit property as she had been deserted by her husband and was unable to move out immediately. Believing these words, the 1st respondent had permitted the 2nd respondent to continue to live in the suit property. However, the 2nd defendant proceeded to file a suit O.S.No.748 of 1993 on the file of the learned District Munsif, Ponneri, which was later transferred to the learned District Munsif -cum- Judicial Magistrate, Thiruvottiyur and renumbered as O.S.No.596 of 1997 for permanent injunction against the 1st defendant Vivekanandam and the 1st respondent herein that she should not be evicted except by due process of law. Since the 2nd respondent had questioned the title of the 1st respondent and as she was squatting on the property the suit came to be filed for the reliefs stated therein.

3. The 1st defendant Vivekanandam chose to remain ex parte in the suit and the suit was hotly contested by the 2nd respondent herein and ultimately, by Judgment and Decree dated 16.02.2005, the suit was decreed by the learned Sub Judge, Ponneri. This decree was taken on appeal by the 2nd respondent, but ultimately she allowed the same to be dismissed for default. Thereafter, the 1st respondent had filed E.P.No.97 of 2005 for delivery of the suit property. It appears that by an order dated 13.06.2008 in C.R.P.(NPD).No.1625 of 2008, this Court has directed the Execution Petition to be disposed of within a period of six months. It is also worthwhile mentioning that the 1st defendant Vivekanandam had died only on 17.11.2005 nearly nine months prior to the decree being passed in O.S.No.6 of 2001.

4. The petitioners have thereafter filed two petitions in I.A.SR.Nos.1282 and 1283 dated 16.02.2010 in O.S.No.6 of 2001 to set aside the ex parte decree dated 16.02.2005 passed against the deceased 1st defendant and to implead the petitioner as legal representatives of the deceased 1st defendant.

5. In the affidavit filed in support of the petitions, the petitioners would contend that the father of the 1st defendant could not have executed the Sale Deed in favour of the plaintiff as he was mentally retarded and he had lost his consciousness several years ago and that taking advantage of this mental state of the father, the 1st respondent had set up the Sale Deed. It is also their contentions that in the year 2001, their father had become paralyzed and lost his full consciousness and had been bedridden for years together. Due to the illness, their father died intestate on 17.11.2005 leaving behind the petitioner and the 2nd respondent as his legal representatives.

6. The 2nd respondent, who had converted into Christianity had severed her ties with the family and was leading a separate and isolated life in a portion of the suit property. It was also their case that on 11.02.2010, the 1st respondent had come to their property and created a scene stating that he would be taking possession of the property by orders of the Court. Thereafter, on enquiry, they came to know about the said fact that their father had been set ex parte and an ex parte decree was passed on 16.02.2005. In Paragraph 6 of the affidavit filed in support of this petition, they would contend that summons was not served on their father and that they were not intimated about the pendency of the suit. They would also contend that they being the legal representatives of the father, were entitled to protect their property and therefore, they have come forward with the present applications. According to them, they came into knowledge of the suit only, when the 1st respondent had come into the property.

7. From the records, it is seen that the learned Sub Judge, Ponneri, has dismissed the applications without even numbering the same on the ground that the Court is not competent to entertain an application for setting aside the decree, which has been passed after full trial and against which, an appeal had been filed and ultimately dismissed for default. Therefore, under Section 94 of the Act, the Court does not have jurisdiction to entertain this application. It is this order that is being challenged in the present proceedings.

8. Heard the learned counsel appearing for the petitioner and perused the material available on record.

9. From a perusal of the records, it is clearly evident that the Judgment and Decree dated 16.02.2005, which is being called an ex parte decree, is not an ex parte decree, but a decree that has been passed after full trial. From the impugned order, it is also evident that the 2nd respondent herein has challenged this Judgment and Decree, by taking it on appeal, which was ultimately allowed to be dismissed for default. Therefore, by no stretch of imagination can it be stated that the Judgment and Decree dated 16.02.2005, is an ex parte decree. Further, it is seen that after passing of the decree, the 1st defendant, father of the petitioners was alive for a further period of nine months and he has not taken any steps to set aside this ex parte decree. The 2nd defendant, who is none other than the sister of the petitioners has been very diligent in prosecuting the suit and nowhere in her written statement, which has been filed as early as in 2001, the 2nd defendant has come forward with the statement that the father was mentally retarded. Therefore, I find no substance to interfere with the orders of the learned Sub Judge, Ponneri.

In the result, these Civil Revision Petitions stand dismissed. There shall be no order as to costs.
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