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2018 Supreme(Mad) 655
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
V. Ramalingam - Petitioner
Versus
B. Baghiyam & Another - Respondents
CRP (NPD) Nos. 2018 & 2019 of 2014 & M.P. No. 1 of 2014
Decided On : 09-02-2018
For the Petitioner:Naveen Kumar Murthi, Advocate.
For the Respondents:Chitra Sampath, Senior Counsel for S. Vinoth, Advocate
Headnote:
Limitation Act – Section 5 – Condoning the delay – Petitioner is the second respondent in REA filed by the first respondent for condoning the delay of 796 days in filing the application in E.A. to set aside the ex-parte order made in E.P. – Petitioner is the auction purchaser. – The first respondent is one of the judgment debtors and second respondent is the decree holder. – The second respondent filed E.P.No.166 of 1996 to sell the property of the first respondent to realise the decreetal amounts. – Notice was served on the first respondent. – The first respondent entered appearance through Advocate on 23.11.1995 and was taking time to file counter. – After number of adjournments, E.P was posted on 28.11.1996 finally for filing counter by the first respondent. – The first respondent did not file counter and she was set ex-parte. – E.P was proceeded with and in court auction held on 11.04.1997, the petitioner purchased the property for Rs.1,00,100/-.– Held, First respondent has filed application for condoning the delay as well as to set aside the ex-parte order on the ground that her Advocate did not inform her about the proceedings and order setting her ex-parte. – It is an admitted fact that the petitioner engaged an Advocate –. Till 05.03.1999, the first respondent did not contact her Advocate to find out the stage of the execution proceedings. – First respondent was not vigilant enough to protect her interest as claimed by her and put forth her contention on merits. – Judge has allowed the application to condone the delay on the ground that the first respondent should not suffer for the mistake of her Advocate. – Judge failed to take note of the attitude of the first respondent and her inaction in contacting her Advocate from 12.08.1995, when vakalat was filed on her behalf. – Reason given by the learned Judge to condone the delay is not valid. – Contention of the learned Senior Counsel for the first respondent that when the Lower Court accepted the reason for the delay and condoned the delay, the superior court normally should not interfere with the said order and judgments relied on by her in this regard are not applicable to the facts of the present case. – When the order of the court below is perverse, the same can be reversed in Revision. – When it is clear from the facts of the case that the first respondent was not vigilant enough to put forth her case on merits and when the order of the Lower Court condoning the delay is erroneous, definitely, this Court can set aside the said order – Civil Revision Petitions Allowed
1. CRP (NPD) No.2018/2014 is filed against the fair and decretal order dated 11.12.2013 made in E.A.No.158 of 2011 in E.A.No.359 of 2005 in E.P.No.166 of 1996 in O.S.No.1232 of 1987 on the file of the learned First Additional District Munsif Court, Coimbatore.
CRP (NPD) No.2019/2014 is filed against the fair and decretal order dated 20.03.2014 made in E.A.No.359 of 2005 in E.P.No.166 of 1996 on the file of the learned First Additional District Munsif Court, Coimbatore.
2. The parties and issues involved in both the Civil Revision Petitions are one and the same and therefore, these revision petitions are disposed of by common order.
3. The petitioner is the second respondent in REA No.158 of 2011 filed by the first respondent for condoning the delay of 796 days in filing the application in E.A.No.359 of 2005 to set aside the ex-parte order dated 28.11.1996 made in E.P.No.166 of 1996. The petitioner is the auction purchaser. The first respondent is one of the judgment debtors and second respondent is the decree holder. The second respondent filed E.P.No.166 of 1996 to sell the property of the first respondent to realise the decreetal amounts. On 12.10.1995, notice was served on the first respondent. The first respondent entered appearance through Advocate on 23.11.1995 and was taking time to file counter. After number of adjournments, E.P was posted on 28.11.1996 finally for filing counter by the first respondent. The first respondent did not file counter and she was set ex-parte. E.P was proceeded with and in court auction held on 11.04.1997, the petitioner purchased the property for Rs.1,00,100/-.
3(a) On 16.06.1997, sale in favour of the petitioner was confirmed in E.P. No.166 of 1996 and sale certificate was issued and E.P was closed. The petitioner filed E.A.No.2 of 1998 in E.P.No.166 of 1996 for delivery of possession of the property purchased by him. On 11.02.1999, the said application was allowed. On 23.02.1999, the Court Amin went to the property for taking delivery of possession and the same was obstructed by persons claiming to be the tenants. The petitioner filed E.A.Nos.91 & 92 of 1999 for police aid for taking delivery of possession of the property purchased and to break open the lock of the premises, respectively, on the ground that the respondents 2 to 6 therein locked the petition premises. At that stage, the first respondent filed application in the year 1999 to set aside the ex-parte order dated 28.11.1996. The said application was numbered as E.A.No.359 of 2005, only in the year 2005.
3(b) The first respondent also filed E.A.No.418 of 1999 under Section 47 of CPC challenging the sale in favour of the petitioner. The petitioner filed counter and contended that the said application is not maintainable in view of the fact that the first respondent has not filed any application to condone the delay. The first respondent, on 01.04.2011 filed E.A.No.158 of 2011 to condone the delay of 796 days in filing E.A.No.359 of 2005 in E.P.No.166 of 1996 to set aside the ex-parte order. Originally, the petitioner was not a party in both the applications. On his application E.A.No.164 of 2011 in E.A.No.359 of 2005, he was impleaded as second respondent, in both the applications. In E.A.No.359 of 2005 and E.A.No.158 of 2011 filed by the first respondent, she has stated that she is only a guarantor. After receipt of notice in E.P., she engaged an Advocate and filed vakalat. She was informed by her Advocate that he will send a communication with regard to the proceedings in the E.P. She did not receive any communication from the Advocate that she has been set ex-parte on 28.11.1996 for not filing counter. She came to know about the ex-parte order only when court amin came for taking possession of the property. Thereafter, she filed application on 05.03.1999 to set aside the ex-parte order.
3(c) According to the first respondent, her earlier counsel did not inform her about the order setting aside her ex-parte and prayed for allo
