https://www.mhc.tn.gov.in/judis/ ORDER The Civil Revision Petition has been filed to set aside the fair and decreetal order, passed in I.A.No.4 of 2015 in Un-numbered Review Petition, --- of 2016, dated 03.04.2017, on the file of the Sub-Court, Sankarankovil.
2.The appellant in C.M.A.No.2 of 2002 is the revision petitioner herein has filed a petition in I.A.No.4 of 2015 in Un-numbered Review Petition No.--- of 2016, under Section 5 of the Limitation Act, to condone the delay of 4578 days in filing the un-numbered Review Petition, on the file of the learned Subordinate Judge, Sankaranakovil and the same was dismissed on 03.04.2017. Aggrieved over the same, the revision petitioner is before this Court.
3.Heard Mr.F.X.Eugene, learned counsel appearing for the revision petitioner and Mr.A.Baskaran, learned Government Advocate appearing for the respondent. Perused the material documents available on record.
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4. The learned counsel appearing for the revision petitioner submitted that the Court below ought to have allowed the petition under Section 5 of Limitation Act, to give an opportunity to defend the case, as the same is a genuine one. He further submitted that the delay condonation petition ought to have allowed, avoiding the multiplicity of further litigations.
5. The revision petitioner has filed I.A.No.4 of 2017 to condone the delay of 4578 days in filing review petition to review the order, dated 28.01.2003 in C.M.A.No.2 of 2002.
6.The revision petitioner has filed C.M.A.No.2 of 2002 against the award dated 26.03.98 in 14/97-98 passed by the respondent herein. Against the same award another one Padarnisha has filed C.M.A.No.5 of 2002. Both CMAs were tried together and common Judgment was delivered on 28.01.2003.
7.The appellant in C.M.A.No.5 of 2002 alone has filed S.A. No.218 of 2008 and the same was remanded to the Subordinate Court, Sankarankovil and tried by the learned Subordinate Judge and delivered 3/8 https://www.mhc.tn.gov.in/judis/ fresh fair and decreetal order on 31.08.2012 and the award amount was also refixed at Rs.13,589/-per cent with 15% solatium along with 6% interest.
8.Now the appellant in CMA has filed a review application to review the order passed in C.M.A.No.5 of 2002 dated 31.08.2012 for setting aside the order, dated 28.01.2003.
9.When in the second appeal, a common order and decree were set aside and the matter was remanded back to the Subordinate Court, notice to party in another C.M.A.(2 of 2002) also to be given. Without issuing notice to the revision petitioner, the matter was decided as fresh.
10.The learned counsel appearing for the revision petitioner relied upon the Judgment reported in AIR 1993 SC 1202, in the case of Premier Tyres Limited Vs. Kerala State Road Transport. The paragraph No.4 of the Judgment is extracted hereunder:
“4.Although none of these decisions were concerned with a situation where no appeal was 4/8 https://www.mhc.tn.gov.in/judis/ filed against the decision in connected suit but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from.”
11.Here once a common judgment was set aside in the second appeal and the matter was remanded back to the Subordinate Court for fresh trial then the entire order in CMA goes.
12.Therefore, the learned Subordinate Judge has to review the order, dated 31.08.2012 passed in C.M.A.No.5 of 2002, in accordance with law.
13.Without issuing notice in the second appeal, C.M.A.No.5 of 2002 (since common judgment in C.M.A.Nos.2 & 5 of 2002) fresh order 5/8 https://www.mhc.tn.gov.in/judis/ passed on 31.08.2012. The appellant came to knowledge about the proceedings only on 23.09.2015 and therefore, she has filed the petition within the time.
14.But, she has filed this delay condonation petition from the date of fresh order. Satisfied with the reasons assigned by her in the petition, this Court is inclined to allow this Civil Revision Petition.
15.Finally, this Civil Revision Petition is allowed by setting aside the fair and decreetal order, dated 03.04.2017 in I.A.No.4 of 2015 in Un- numbered Review Petition, --- of 2016, passed by the learned Subordinate Judge, Sankarankovil. The learned Subordinate Judge, Sankarankovil, is directed to number the petition and dispose of the same, as early as possible, on merits and in accordance with law. No Costs.
Note :In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. To
1.The Subordinate Court, Sankarankovil.
2. The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
7/8 https://www.mhc.tn.gov.in/judis/ S.ANANTHI, J.
ksa Order made in C.R.P(MD)No.239 of 2021 29.10.2021 8/8 https://www.mhc.tn.gov.in/judis/