Subbammal (Died) vs Jeyaraj - 2023 Supreme(Mad) 3071

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 3071

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Subbammal (Died) & Ors. - Appellants
Versus
Jeyaraj & Ors. - Respondents
C.R.P.(MD). Nos. 1585 & 1586 of 2012 & C.R.P(MD). No. 463 of 2015 & MP(MD). No. 1 of 2015
Decided On : 22-09-2023

For the Appearing Parties :S. Kadarkarai, D. Srinivasaragavan, Advocates.

Headnote:
Notice - Transfer of Suit - 115, 227 - 1981 (Vol.94) LW 256, 2007 5 MLJ 720, 2019 SCC Online Mad 19869 - The court discussed the requirement of notice when a suit or appeal is transferred from one Court to another Court. It highlighted the circular issued by the High Court in 1981, which stated that notice or fresh notice should be issued by the transferee Court if the parties have not already been served. The court also referred to subsequent judgments and circulars, ultimately concluding that once a party is represented through a Counsel, an endorsement of the said Counsel to the effect that he is aware of the transfer of the proceedings to another particular Court is enough and no notice need be sent either by transferor or by transferee Court to the litigant concerned.
Fact of the Case:
The legal heirs of the first defendant in a suit for partition filed petitions challenging an order rejecting their application to implead themselves in the final decree proceedings and their request for receiving objection to the Commissioner's report. The plaintiffs in the partition suit also filed a petition challenging the order rejecting the application to set aside the exparte final decree.
Finding of the Court:
The court found that the legal heirs of the first defendant were not entitled to raise the issue of non-service of notice from the transferee Court, and allowed the petition filed by the plaintiffs in the partition suit, setting aside the order rejecting the application to set aside the exparte final decree.
Issues: The primary issue was whether notice from the transferee Court is mandatory when a suit or appeal is transferred from one Court to another Court.
Ratio Decidendi: The court held that once a party is represented through a Counsel, an endorsement of the said Counsel to the effect that he is aware of the transfer of the proceedings to another particular Court is enough and no notice need be sent either by transferor or by transferee Court to the litigant concerned.
Final Decision: CRP(MD).No.463 of 2015 stands allowed and the order in CMA.No.1 of 2012 is set aside and the order in I.A.No.813 of 2007 dated 24.11.2011 is restored. CRP(MD).Nos.1585 and 1586 of 2012 stand dismissed.

JUDGMENT

(Prayersin CRP(MD).Nos.1585 & 1586 of 2012 : Civil Revision Petitions have been filed under Section 115 of Code of Civil Procedure, against the fair and final order dated 24.11.2011 made in I.A.Nos.814 & 815 of 2007 in I.A.No.155 of 1996 in O.S.No.98 of 1996 on the file of the Principal District Munsif Court, Sankarankovil.

In CRP(MD).No.463 of 2015: Civil Revision Petition filed under Article 227 of Constitution of India, to call for the records relating to the fair and decreetal order passed in C.M.A.No.1 of 2012 dated 14.08.2014 on the file of the Subordinate Court, Sankarankvoil and set aside the same by allowing this civil revision petition.)

Common Order:

1. The legal heirs of the first defendant in a suit for partition have filed CRP(MD).Nos.1585 and 1586 of 2012 challenging an order wherein the Court below had rejected their application to implead themselves in the final decree proceedings and their request for receiving objection to the Commissioner's report was rejected.

2. CRP(MD).No.463 of 2015 has been filed by the plaintiffs in the said partition suit wherein the Subordinate Court, Sankarankovil in CMA.No.1 of 2012 has reversed the order passed by the trial Court in I.A.No.813 of 2007 wherein the trial Court had rejected the application to set aside the exparte final decree.

3. Factual background:

(i) Four plaintiffs have filed O.S.No.196 of 1974 before the Subordinate Court, Tuticorin for the relief of partition and separate possession of their 9/50th share. In the said suit, one Chinna Ayyalusami Naicker was arrayed as the first defendant. After contest, a preliminary decree for partition was passed on 14.11.978. The said decree was challenged before this Court in A.S.No.438 of 1980 by the defendants 1,3 and 4. This Court was pleased to dismiss the appeal on 12.09.1987.

(ii) In the meantime, due to jurisdictional change, the suit was transferred from Subordinate Court, Tuticorin to Subordinate Court, Tenkasi wherein the suit was renumbered as O.S.No.19 of 1993. The plaintiffs/decree holders filed I.A.No.82 of 1993 for passing of final decree. In the said proceedings, notice issued to the first respondent/first defendant namely Chinna Ayyalusami Naicker was returned with an endorsement “ refused”. Therefore, the Final Decree Court set him exparte on 10.06.1993.

(iii) An Advocate Commissioner was appointed to divide the properties by metes and bounds. He had filed the report on 21.10.1995.

(iv) Before enquiry in the final decree proceedings could be commenced, the suit was again transferred from Subordinate Court, Tenkasi to District Munsif Court, Sankarankovil due to jurisdictional change wherein the suit was renumbered as O.S.No.98 of 1996. The final decree application was renumbered as I.A.No.155 of 1996. The District Munsif Court, Sankarankovil after hearing either parties passed a final decree on 08.09.1997.

(v) The decree holders have filed E.P.No.55 of 2006. The first defendant in the suit namely Chinna Ayyalusami Naicker had passed away on 26.01.2006. Therefore, the petitioners in the execution petition had filed I.A.No.363 of 2006 to implead his legal heirs. When notice was received by the legal heirs of the deceased first defendant in the execution proceedings, they filled the following applications:

(a) I.A.No.813 of 2007 to set aside the exparte final decree.

(b) I.A.No.814 of 2007 to impleade the legal heirs of the deceased first defendant and to array them as defendants 7 to 9 in the final decree proceedings.

4. All the three applications were heard together by the learned Principal District Munsif, Sankarankoivl and a common order came to be passed on 24.11.2011. The District Munsif was pleased to hold that the first defendant having been set exparte even before the Subordinate