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2009 Supreme(Mad) 836
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
Subramani
Versus
Kavitha
C.R.P. (NPD) No.728 of 2009 and M.P.No.1 of 2009
Decided on : 30-03-2009
For the Petitioner:T. Dhanyakumar, Advocate. For the Respondent:
Valid reasoning required for condoning delay in filing petition, possibility of multiple preliminary decrees in partition suit
Headnote:
Limitation Act - Delay in Filing Petition for Condonation of Delay - Final Decree in Partition Suit
Fact of the Case:
The revision petitioner was set exparte in a partition suit and filed a petition to set aside the exparte decree, citing a delay of 1029 days in filing the petition under Order 9 Rule 13 CPC. The petition was dismissed for lack of acceptable reasoning in the affidavit.
Finding of the Court:
The court dismissed the revision petition, stating that it is open to the petitioner to get impleaded in the final decree proceedings and raise defenses there. The court also noted that any number of preliminary decrees can be passed before a final decree in a partition suit.
Issues: Delay in filing petition for condonation of delay, setting aside exparte decree, impleading in final decree proceedings
Ratio Decidendi: The court emphasized the need for valid reasoning in the affidavit for condoning delay and highlighted the possibility of passing multiple preliminary decrees before a final decree in a partition suit.
Final Decision: The civil revision petition and connected M.P.No.1 of 2009 were dismissed.
Heard the learned counsel appearing for the revision petitioner.
2. This revision petition has been directed against the order passed in I.A.No.848 of 2008 in O.S.No.534 of 2004 on the file of the Court of District Munsif, Gudiyatham. The learned counsel appearing for the revision petitioner would state that the suit is for partition and that the petitioner was set exparte in the suit and to set aside the exparte decree, there was a delay in filing a petition under Order 9 Rule 13 CPC to condone the delay of 1029 days, he had filed I.A.No.848 of 2008 under Section 5 of the Limitation Act which was dismissed, since there was no acceptable or valid reasoning in the affidavit to the petition for condoning the delay of 1029 days.
3. According to the learned counsel for petitioner, a final decree is yet to be passed in the suit and a petition for final decree is pending. Under such circumstances, it is open to the revision petitioner to get himself impleaded in the final decree proceedings in O.S.No.534 of 2004 and to raise all his defence in the final decree proceedings. It is well settled proposition of law that before passing a final decree in a partition suit, any number of preliminary decree can be passed. With the above observations, this civil revision petition is dismissed. Consequently, connected M.P.No.1 of 2009 is also dismissed.
