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2026 Supreme(Online)(Mad) 28314
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. Lakshminarayanan, J
A.Kanagaraj – Appellant
Versus
A.Sethuramamalingam – Respondent
C.R.P.(MD).No.617 of 2026|C.M.P.(MD).No.2869 of 2026
For the Appellants/Petitioners: K. Hemaraj
For the Respondents: R. Shankar Ganesh
A party should not be penalized for the negligence of their counsel, especially in suits involving valuable property rights, but the court may impose conditions to balance the interests of a decree-holder who has already incurred expenses in executing the decree.
Headnote:The matter involves a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure to set aside an order dismissing an application for condonation of delay in filing a petition under Order IX Rule 13. The underlying suit was for specific performance of a sale agreement where the defendants were set ex parte and a decree was passed. The defendants sought condonation of a 133-day delay, citing the first defendant's illness and a failure of their counsel to inform them of the suit's stage. The trial court had conditionally allowed the application, but subsequently dismissed it due to the defendants' failure to pay the imposed costs. The court examined whether the negligence of a counsel should result in the loss of vital property rights. The primary issue was balancing the defendants' right to contest the suit against the fact that the plaintiff had already proceeded with the execution of the decree, including the payment of stamp duty and registration charges. The court reasoned that while a party should not suffer for the defaults of their counsel, the interests of the decree-holder who has already acted upon the decree must also be protected. This Civil Revision Petition is disposed of in the above terms.
| Table of Content |
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| 1. procedural history of the ex parte decree and the subsequent failed application for condonation of delay. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. arguments regarding counsel's failure to communicate and the progress of the execution petition. (Para 9 , 10) |
| 3. legal principle that a party should not be penalized for the negligence of their counsel in matters of valuable property rights. (Para 11 , 12 , 13) |
| 4. balancing the interests of the parties by allowing the application subject to reimbursement of registration costs and enhanced costs. (Para 14 , 15) |
PRAYER:
Civil Revision Petition filed under Section 115 of Civil Procedure Code, to set aside the fair and decreetal order, dated 14.09.2023, passed in I.A.No.2 of 2023 in O.S.No.117 of 2021 on the file of the Subordinate Court, Periyakulam.
ORDER
Heard Mr.K.Hemaraj, learned counsel for the petitioners and Mr.R.Shankar Ganesh, learned counsel for the respondent.
2. This revision challenges the order passed by the learned Subordinate Judge at Periyakulam in I.A.No.2 of 2023 in O.S.No.117 of 2021 dated 14.09.2023.
3. For the sake of convenience, the parties shall be referred to as their rank in the suit.
4. O.S.No.117 of 2021 is a suit for specific performance of an agreement of sale dated 31.10.2019. The plaintiff, alleging that he had performed all that he had to and that the defendants were evading the execution of the sale deed, presented the aforesaid suit. The suit was taken on file by the Subordinate Court at Periyakulam and summons were issued to the defendants. A detailed written statement was filed by the defendants resisting the claim of the plaintiff. On this basis, issues had been framed and the parties were pushed to trial.
5. The plaintiff entered the witness box and deposed in chief. Documents were marked. The matter was listed for cross-examination of the plaintiff. At that stage, the defendants did not appear before the Court nor did their counsel make any attempt to cross-examine the plaintiff. Consequently, the Court, left with no other option, set the defendants ex parte and decreed the suit as prayed for on 18.11.2022.
6. On coming to know of the ex parte decree, the defendants filed an application in I.A.No.2 of 2023 before the Subordinate Court at Periyakulam, seeking to condone the delay of 133 days in filing the application under Order IX Rule 13 of Code of Civil Procedure. The reason given by the defendants for non-appearance on the date of hearing was that the first defendant, Mr.A.Kanagaraj, being a senior citizen, had been afflicted with jaundice and hence, could not appear before the Court. Anticipating that the Court may call upon him to produce the medical records, the defendants took a plea that the first defendant was taking traditional medicine as a cure for jaundice. It was also pleaded that the then counsel appearing for the defendants had not informed the defendants about the stage of the suit, which resulted in the ex parte decree. This application was taken on file in I.A.No.2 of 2023.
7. The plaintiff did not file a counter to the application, but orally opposed the same.
8. The learned Judge, considering the facts and circumstances of the case, ordered that a sum of Rs.4000/- be paid to the plaintiff and a sum of Rs.1000/- be paid to the Mediation Centre, Theni District. For compliance of the said condition, he granted time till 29.09.2023. The defendants did not pay the amount as directed by the Court. Consequently, the application came to be dismissed. Challenging the said order, the present revision.
9. Mr.K.Hemaraj appearing for the petitioners/defendants urged that the counsel, who appeared for the petitioners in the condone delay application, did not inform them about the condition that had been imposed by the Court, which resulted in the dismissal of the application for non-payment of cost.
10. Per contra, Mr.R.Shankar Ganesh appearing for the respondent/plaintiff points out that, with the dismissal of the petition
