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MADRAS HIGH COURT
T. Mathivanan, J.
Visalakshi - Appellants
Versus.
Umapathy & Others - Respondents
C.R.P.PD.No.4082 of 2013 and M.P.No.1 of 2013
Decided on : 19.12.2014
Limitation Act – Article 137 – Code of Civil Procedure, 1908 – Order IX Rule 7, Order 8 Rule 10 – Relief of partition – Declaration – Revision petitioner is the first defendant, whereas the respondents 1 to 4 are the plaintiffs in the suit in O.S.NO.147 of 2007 on the file of the learned II Additional Subordinate Judge, Cuddalore. The respondents 5 to 10 herein are the defendants 2 to 7. – It is apparent from the records that the respondents 1 to 4 herein have filed the above suit as against the revision petitioner herein being the first defendant as well as against the respondents 5 to 10 seeking the relief of partition and for declaration that the alleged sale deed said to have been executed by the first defendant, viz., the revision petitioner in favour of the 7th defendant in the suit on 28.6.2007 in respect of item No.1 of the suit property as null and void and also for costs. – Held, Single Judge of the Delhi High Court has held that the contention of the learned counsel for the petitioner that the applications under Order IX Rule 7 C.P.C., are governed by Article 137 of the Limitation Act, requires no discussion in view of the legal position as laid down in the above referred decisions. – Ex parte order, as against the revision petitioner/D1 was passed on 5.6.2009. But the application in I.A.No.87 of 2013 under Order 9, Rule 7 C.P.C., was filed on 7.6.2013, i.e., after the lapse of four years. – For filing the application under Order 9, Rule 7 C.P.C., no limitation is prescribed. – It does not mean that an application under Order 9, Rule 7 C.P.C., to set aside the ex parte order can be filed at any point of time, i.e., even after several years as has been done in the present case on hand – Since no limitation is prescribed under Order 9 Rule 7 C.P.C., like that of Order 9 Rule 13 as observed in Rajajis case as well as in Vikas Dedeechs case (Delhi High Court), the provisions under Article 137 being residuary provision alone would be made applicable and therefore, under Article 137 of the Limitation Act, the period of limitation is prescribed as three years and since the application in I.A.No.87 of 2013 has been filed after the period of three years, it is squarely barred by limitation under Article 137 of the Limitation Act, 1963, as rightly concluded by the learned trial Judge, which according to this Court, does not require any interference and therefore, the revision petition deserves to be dismissed. – Civil Revision Petition Dismissed
The revision petitioner is the first defendant, whereas the respondents 1 to 4 are the plaintiffs in the suit in O.S.NO.147 of 2007 on the file of the learned II Additional Subordinate Judge, Cuddalore. The respondents 5 to 10 herein are the defendants 2 to 7.
2. It is apparent from the records that the respondents 1 to 4 herein have filed the above suit as against the revision petitioner herein being the first defendant as well as against the respondents 5 to 10 seeking the relief of partition and for declaration that the alleged sale deed said to have been executed by the first defendant, viz., the revision petitioner in favour of the 7th defendant in the suit on 28.6.2007 in respect of item No.1 of the suit property as null and void and also for costs.
3. It is also manifested from the records that the revision petitioner being the first defendant and the 7th defendant alone have contested the suit by filing their respective written statements.
4. When the suit was listed for trial proceedings on 5.6.2009, the revision petitioner was not able to appear on account of his ill-health and therefore, an ex parte order came to be passed against her.
5. It is also revealed that the revision petitioner/D1 had filed an application in I.A.No.87 of 2013 under Order IX Rule 7 C.P.C. on 17.6.2013 to set aside the ex parte order, which was passed against him on 5.6.2009. It is, therefore, crystalised that the application seems to have been filed after the lapse of four years.
6. This application was resisted by the first respondent/plaintiff by filing their respective counter statements.
7. After hearing both sides and on perusal of the records, the learned trial Judge had proceeded to dismiss the application on 17.7.2013 on the ground that the application was barred by limitation as contemplated under Article 137 of the Limitation Act, 1963.
8. Impugning the said order, the revision petitioner/D1 has filed this civil revision.
9. Heard M/s.P. Mani, learned counsel appearing for the petitioner and Mr.R. Sunil Kumar, learned counsel appearing for R10. Despite service of notice, the respondents 1 to 9 have not chosen to appear.
10. The only contention raised by Mr.P. Mani, who is the learned counsel appearing for the revision petitioner/D1, is that no period of limitation has been prescribed under Order 9 Rule 7 C.P.C. to set aside the ex parte order and therefore, Article 137 of the Limitation Act would not be made applicable.
11. On the other hand, Mr.R.Sunil Kumar, learned counsel appearing for the 10th respondent has adverted to that since no limitation has been prescribed under Order 9 Rule 7 C.P.C., Article 137 of the Limitation Act, 1963 being the residuary provision would be very well made applicable and therefore, if the revision petitioner/D1 wanted to file an application to set aside the ex parte order, dated 5.6.2009, he ought to have filed that application on or before 5.6.2012 on which date the period of three years expire. But the revision petitioner/D1 has filed the said application only on 17.6.2013 that too after the lapse of four years and therefore, the application is squarely barred by limitation as contemplated under Article 137 of the Limitation Act and hence, he has urged that the revision petitioner has no competency as the impugned order is within the bounds of Article 137 of the Limitation Act.
12. Mr.P. Mani, learned counsel for the petitioner has relied upon the following decisions in support of his contention.
a. Palani Nathan vs. Devanai Ammal.
b. Kasturi and others vs. Saravanan @ Sakthi Saravanan ((2010) 7 MLJ 802).
c. Rajaji vs. R.Krishnaji.
13. On the other hand, Mr.R.Sunil Kumar, learned counsel appearing for R10, in order to fortify his contention has placed reliance upon the following decisions.
a. C.L Cleetus vs. South Indian Bank Ltd. and another (AIR 2007 Kerala 301).
b. Vikas Dedeech vs. Richhook Garments (P) Ltd., (Unreported judgment passed by the Delhi High Court, which was decided on 15.2.2013 in C.R.P.N
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