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2011 Supreme(Mad) 1563
High Court of Judicature at Madras
S. TAMILVANAN
Ponnammal & Others
Versus
S.V. Subramanian
C.R.P.(NPD).NO.73 OF 2010 & M.P.No.1 of 2010
Decided on : 21-03-2011
For the Petitioners:N. Manoharan, Advocate. For the Respondent: AR.L. Sundaresan, Senior Counsel.
The court emphasized that inordinate delay in filing a petition under Section 5 of the Limitation Act must be satisfactorily explained, and allowing a petition after passing the final decree may cause prejudice to the rights of the respondent.
Headnote:
Limitation Act - Civil Procedure Code - [Section 5 of the Limitation Act, Order 9 Rule 13 C.P.C.] - The court discussed the maintainability of a petition under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act to set aside an exparte decree. The court also considered the nature of the decree, the rights of the defendants, and the inordinate delay in filing the petition.
Fact of the Case:
The petitioners purchased shares from the first defendant and were later set exparte in a suit. They filed a petition under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act to set aside the exparte decree, citing delay in filing the petition. The respondent contended that the delay was willful and wanton.
Finding of the Court:
The court found that the delay in filing the petition was not satisfactorily explained and dismissed the revision petition, stating that allowing the petition after passing the final decree would cause prejudice to the rights of the respondent.
Issues: The issues involved the maintainability of the petition under Order 9 Rule 13 C.P.C. and Section 5 of the Limitation Act, the nature of the decree, and the inordinate delay in filing the petition.
Ratio Decidendi: The court held that the delay in filing the petition was willful and wanton, and dismissing the petition would not lead to the failure of substantial justice. Allowing the petition after passing the final decree would cause prejudice to the rights of the respondent.
Final Decision: The Civil Revision Petition was dismissed, and the miscellaneous petition was closed. No order as to costs.
1. Heard Mr.N.Manoharan, learned counsel appearing for the petitioners and Mr.AR.L.Sundaresan, the learned Senior counsel for the respondent.
2. This revision has been preferred challenging the order dated 06.11.2009 made in I.A.No.168 of 2008 in O.S.No.536 of 1997 on the file of the Second Additional Subordinate Court, Erode.
3. It is not in dispute that the respondent herein had filed a suit in O.S.No.536 of 1997 against the defendants 10, 12 and 13 who were petitioners 1 to 3 herein. After filing the suit, the petitioners herein were arrayed as defendants 10, 12 and 13, on the ground that they purchased certain shares from the first defendant namely Mr.Veerappa Gounder (died).
4. According to the learned counsel appearing for the petitioners, an exparte decree was passed on 18.09.1996 by the Court below on 18.09.2006. To set aside the exparte decree, the petitioners have filed an application under Order 9 Rule 13 C.P.C. along with petition under Section 5 of the Limitation Act to condone the delay of 679 days in filing the petition to set aside the exparte decree. By the impugned order, the said petition, under Section 5 of the Limitation Act filed by the petitioners was dismissed by the Court below. Aggrieved by which, the petitioners herein have preferred the present revision.
5. Learned counsel appearing for the petitioners further submitted that though the petitioners herein purchased the entire first item of the Schedule of property from the first defendant, their substantial rights could be adjudicated. The learned counsel appearing for the petitioners also further submitted that the other defendants contested the matter, however, the Preliminary Decree passed so far as against the petitioners was only an exparte decree and therefore the unnumbered petition filed under Order 9
Rule 13 C.P.C. was along with a petition under Section 5 of the Limitation Act was maintainable. After receiving the summons in the suit, the petitioners have approached the second defendant, son of the first defendant and he knows the rights of the petitioners would be defended by him by engaging an advocate to defend the case of the petitioners. According to the learned counsel for the petitioners, for the purpose of engaging a counsel, the petitioners have paid a sum of Rs.500/- each to the second defendant and also signed in a Vakalat.
6. As contended by the learned Senior Counsel appearing for the respondent, there is no proof for the said averments of the petitioners and further the defence raised by the petitioners is not legally sustainable. The learned Senior Counsel contended that admittedly the petitioners purchased only a portion of the suit property. Hence, 'lis pendens' is applicable and therefore the petitioners need not be arrayed as defendants in the suit. Any how, the petitioners 1 to 3 were arrayed the defendants 10, 12 and 13 in the suit, since they remained absent and they were set exparte. However, other defendants contested the suit and decree was passed on 18.09.2006 and therefore, it is only a contested decree, which cannot be set aside under order IX Rule 13 C.P.C. Subsequently, final decree application was filed and notice was also served on the petitioners on 20.06.2007. However, the petitioners have not filed any application to condone the delay and to set aside the alleged exparte decree immediately. The petitioners herein filed a petition relating to the impugned order only on 26.02.2008 though final decree application was filed and final decree was also passed on 27.11.2009. According to the learned senior counsel for the respondent, the absence of the petitioners as defendants in the suit, the delay could be construed only as deliberate negligence. If the petition is allowed the Court has to set aside the preliminary decree passed in favour of the second respondent and also the final decree. Though the final decree was passed nearly 14 years after filing of the suit.
7. The learned senior counsel drew t
