C.R.P.No.1450 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.09.2023

CORAM :

THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN

C.R.P.No.1450 of 2021

and

C.M.P.No.11343 of 2021

Allikan (Died)

1.C.Subramani

2.C.Kishtan

3.G.Raja

4.Murugesan

.. Petitioners

vs

1.K.Subramani

2.M.Subramani

C.Natesa Naiker

Mannasiyammal

3.Govindammal

4.Sushilammal

5.Valliammal

6.Salammal

7.Savithiri

8.Sangunthala

.. Respondents

Petition filed under Section 115 of CPC against the order and

decreetal order dated 21.04.2021 passed in CMA No.3 of 2017 by

learned Subordinate Judge at Tiruvallur confirming the order and

decreetal order dated 06.01.2017 passed in EA Sr.No.2807 of 2016

by learned District Munsif, Tiruvallur and to restore E.A.No.1 of

2012 in EP No.62 of 2008 in OS No.331 of 1985 –

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C.R.P.No.1450 of 2021

CH.D.C.A.S.No.126/90 – High Court S.A.905/1991, on the file of

District Munsif, Tiruvallur by allowing the Civil Revision Petition.

For Petitioners

:

Mr.N.Nagu Sah

For Respondents

:

Mr.Krishnakumar

for Mr.V.Janarthanan

for R1, R2

R3 to R8 – No appearance

ORDER

O.S.No.331 of 1985 is a suit for partition filed inter se the

respondent nos. 1 and 2. The said partition suit ended in a

compromise decree in S.A.No.905 of 1991 on the file of this Court.

Putting that compromise decree into execution, E.P.No.62 of 2008

was presented. In E.P.No.62 of 2008, delivery was recorded and the

EP was terminated.

2.

In the meantime, an application was filed in E.A.No.1 of

2012 under Order 21 Rule 99 CPC by one Allikan. The said Allikan

died pending the proceedings and his legal heirs were impleaded as

parties to the proceeding. In E.A.No.1 of 2012, which is a petition

filed under Order 21 Rule 99 CPC, evidence was being recorded.

Mr.Nagu Sha, the learned counsel appearing for the petitioner would

submit that during the relevant time, there was no Presiding Officer

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C.R.P.No.1450 of 2021

at the District Munsif Court at Tiruvallur and an in-charge officer

used to come from Ponneri for the purpose of recording evidence.

3.

Since there was no judicial officer, the petitioner /

obstructor was not in a position to mark the documents. On

20.10.2016, the in-charge Judicial Officer, took charge of the Court

and passed the following order:-

“20.10.2016:

Despite suff. chances petr not turned up for

Marking of documents. This petr is pending for

marking of docts from 10.1.2014. No progress

shown by the petr, Hence this petition is

dismissed for default. No cost.”

4.

E.A.No.1 of 2012 will have to be tried as a suit in terms

of Order 21 Rule 101 of CPC. This is because, prior to amendment

Act 104 of 1970, it contemplated filing of a suit by a third party who

staked a claim of the property which had been taken possession of

by the decree-holder. However, in its wisdom the Parliament

amended Order 21 Rules 99, 101 & 104 of the CPC. As per the

amendment made to Order 21 Rule 101 CPC, a third party who is

dispossessed pursuant to execution of decree is not entitled to file a

separate suit but will necessarily have to obstruct the decree in

terms of Order 21 Rule 99 CPC. That is what has been done in the

present case by filing E.A.No.1 of 2012.

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C.R.P.No.1450 of 2021

5.

When E.A.No.1 of 2012 is being tried as a suit, the

same procedure that is followed in a suit ought to have been

adopted, as nearly as possible. If a suit is posted for marking of

documents and the plaintiff does not turn up for marking of

evidence, the procedure that is followed, at least in this State, is

that the evidence of the plaintiff will be closed and the matter will

be posted for the evidence of the defendant. Instead of doing so in

this case, the Court dismissed the petition itself. Such a course of

action will have a deleterious effect on the