C.R.P.(P.D).No.473 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.07.2021

CORAM

THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

C.R.P. (PD) No. 473 of 2018

and CMP No. 2504 of 2018

1. Arukkani Ammal

2. Jothi

....

Petitioners

Vs

1. N.Krishnamurthy

2. Karupayammal

3. Palanisami

4. Kannammal

5. Ammaniammal

7. Duraisamy

....

Respondents

Prayer :- Civil Revision Petition is filed under Article 227 of the

Constitution of India, to set aside the fair and decreetal order dated

04.03.2021 made in I.A.No.217 of 2012 in O.S.No.929 of 2002 on the file

of the II Additional Subordinate Judge, Erode.

For Petitioners

: Mr.V.Balamurugane

For R1 to R4

: No appearance

For R5 & R6

: Mr.K.Raja

ORDER

This Civil Revision Petition is filed against the fair and decreetal

order dated 04.03.2021 made in I.A.No.217 of 2012 in O.S.No.929 of

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C.R.P.(P.D).No.473 of 2018

2002 on the file of the II Additional Subordinate Judge, Erode, thereby

dismissing the petition to condone the delay in re-presentation.

2. The petitioners are the plaintiffs and the respondents are the

defendants. The petitioners filed a suit in O.S.No.929 of 2002 for

partition as against the respondents herein. When the suit was ripe for

trial, the petitioners did not appear before the Court below and as such, the

suit was dismissed for default. Immediately, they filed a petition to

restore the suit. The said petition was returned for want of some

corrections. It was not re-presented within the time stipulated by the

Court below for the reason that the returned paper mixed with the other

Court bundle and as such, the counsel appeared on behalf of the

petitioners could not able to re-present the petition to restore the suit in

time. As such, there was a delay of 120 days of re-presentation. They

filed a petition to extend the time which was granted to re-present the

petition for restoration under Section 148 read with 151 of CPC.

However, it was dismissed for the reason that already the suit was

dismissed for default on two occasions and as such, the petitioners are not

interested to proceed with the trial.

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C.R.P.(P.D).No.473 of 2018

3. The learned counsel for the respondents would submit that the

petition itself is not maintainable under Section 148 read with 151 of CPC,

since the petitioners ought to have filed a petition to condone the delay

under Section 5 of the Limitation Act. In this regard, he also relied upon

the Judgment of this Court reported in (2005) 3 M.L.J. 331

(K.Rangasamy Gounder -vs- Muthusamy Gounder), in which it has been

held as follows :-

““14. Time granted by the Court for payment of

costs while setting aside an exparte decree under O.9, Rule

13, as a condition precedent thereto is not an act

prescribed or allowed by the Code. Section 148 CPC does

not apply to such a case.

15. Section 148 only enables the Court to

enlarge the said period to do any act prescribed or

followed by the code. Emphasis is on “to enlarge the time

to do any act prescribed or allowed by the Code”. To

explain the act prescribed or allowed by the Code,we may

enumerate few instances.

**Sec.148 - for payment of Court fee

** O.7, R.11 (b)( c) - for correction of valuation

and supply of requisite stamp

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C.R.P.(P.D).No.473 of 2018

** O.8, R.9- for filing additional pleadings

** O.9, R.9; O.9, R.13- To pay costs (when the

petition is pending)

** O.16, R.2- for payment of expenses

** O.23, R.1- for costs when permitting

withdrawal of suits.

** O.41, R.3- Amendment of memo for appeal.

16. Thus Sec.148, C.P.C applies to extend the

time to do any act prescribed or allowed by the Court only

when the matter is pending before the Court and the Court

is grant time not exceeding thirty days with a view to

minimise procedur