The respondents in I.P.No.2 of 2004 are the civil revision petitioners before this Court, challenging the order passed in I.A.No.27 of 2008 in I.P.No.2 of 2004, dated 07.09.2009, on the file of the Sub Judge, Sankari.
2. The case of the respondent/petitioner is that he filed the I.P. to adjudge the 1st respondent as an insolvent and to vest the property as described in the schedule with the official receiver by setting aside the two settlement deeds dated 07.01.2004 in the name of respondents 2 and 3.
3. On 30.01.2006, the said I.P. was set exparte and an exparte order was passed on 30.01.2006. Challenging the said exparte order dated 30.01.2006 in I.P.No.2 of 2004, these petitioners, who are the respondents in I.P.No.2 of 2004 filed for a petition for setting aside the exparte decree passed in I.P.No.2 of 2004, dated 30.01.2006.
4. The petitioners/respondents have alleged in the affidavit that the respondent/petitioner filed the above I.P.No.2 of 2004 and this petitioners/respondents have given vakalath to the counsel for the petitioners/respondents for their appearance and for filing counter. But, no counter has been filed. But, non filing of the counter was not properly informed to the petitioners/respondents by their counsel and the exparte decree was passed on 30.01.2006 and this fact was known to them only when the Salem Official Receiver came to the property on 12.04.2007. Therefore, they filed the set aside application under Order 9 Rule 13 C.P.C along with the condone delay of 495 days in filing the set aside petition and prayed the Court for condoning the delay of 495 days in filing the petition.
5. On receipt of the notice in the set aside petition, the respondent/petitioner has filed his counter stated that this petition was not maintainable, since the petition was filed on 03.09.2007 without the vakalath of the petitioners and the petitioners gave vakalath only on 16.04.2008 to their counsel. The respondent/petitioner also states that the allegations set out by the petitioners that the petitioners/respondents have given vakalath to their counsel, who did not inform to them about filing of the counter and hence they were set exparte on 30.01.2006 and this fact was known to them only when the Official Receiver Salem came to their property on 12.04.2007 also false one. But, the set aside application filed only on 03.09.2007 i.e. after 5½ months from the date of knowledge. The petitioners/ respondents also not given any valid reason for the huge delay of 495 days. Therefore, the petitioners/respondents have not given any valid reason for each and every day delay and prayed for dismissal of the petition.
6. Considering both side cases, the learned Sub-Judge, Sankari was pleased to dismiss the I.A.No.27 of 2008, on the ground that though the allegations that he came to know about that the exparte decree dated 30.01.2006 only on 12.04.2007. But, after 5½ months only the present application has been filed by the petitioners/ respondents. The petitioners/respondents have not given any valid reasons for the huge delay of 495 days in filing the set aside application. Challenging the order passed by the learned Judge, this civil revision petition has been filed before this Court.
7. I heard Mr.S.Kalyanaraman, learned counsel appearing for the petitioners and Mr.C.Munusamy, learned counsel appearing for the respondent.
8. Admittedly, the respondent has filed I.P.No.2 of 2004, but the same was set exparte on 30.01.2006, due to non filing of the counter affidavit by these petitioners/respondents.
9. The petitioners also states that the fact was not disclosed by their counsel that is only ground raised by the petitioners/respondents in this case. They have not raised any other reason for huge delay of 495 days.
10. The Hon’ble Supreme Court in a recent Judgment in Civil Appeal No.(S).3777 of 2015 it is held that there was a delay of 882 days delay in preferring an appeal suit and the said petition was dismissed by this Court by order dated 05.06.2013 in CRP(NPD)No.266 of 2011 and an appeal was filed before the Hon’ble Apex Court in Civil Appeal No.(S).3777 of 2015 in which the Hon’ble Apex Court has passed an order as follows:
“Leave granted.
This appeal arises out of an order dated 5th June, 2013, passed by the High Court of Judicature at Madras whereby CRP(NPD)No.266 of 2011 filed by the appellant has been dismissed and the order passed by the first appellate court declining condonation of 882 days in the filing of the appeal by the appellant affirmed.
We have heard learned counsel for the parties at some length. We are satisfied that in the facts and circumstances of the case, the first appellate court could and indeed ought to have condoned the delay in the filing of the appeal. Since, however, the delay is fairly inordinate, we are inclined to direct condonation subject to payment of costs.
We accordingly allow this appeal, set aside the orders passed by the High Court and that passed by the first appellate Court with the direction that upon deposit of a sum of Rs.50,000/- (Rupees fifty thousand) towards costs before the first appellate court within six weeks from today, the delay in the filing of the appeal shall stand condoned. The first appellate court shall hear and dispose of the first appeal filed by the appellant expeditiously and as far as possible within a period of six months from the date the costs are deposited by the appellant. The amount of costs shall be paid to the respondent.
The appeal is allowed in the terms and to the extent indicated above.”
The Hon'ble Apex Court has allowed the Civil Appeal No.(S).3777 of 2015 on condition that the appellant shall pay a sum of Rs.50,000/- as cost to the respondent in the said appeal.
11. Therefore, applying the said judgment though the petitioners have not given any valid reason for each and every day delay, but, they have given reason that the counsel was not appeared and non filing of the counter in I.P.No.2 of 2004. Therefore, by giving one more opportunity to these petitioners/respondents, this civil revision petition has to be allowed by setting aside the order passed in I.A.No.27 of 2008, but the respondent should compensate the respondent.
12. In the result:
(a) this civil revision petition is allowed by setting aside the order passed in I.A.No.27 of 2007, on condition that the petitioner should pay a sum of Rs.25,000/- as cost to the respondent within a period of four weeks from the date of receipt of a copy of this order;
(b) on production of payment receipt within the time stipulated by this Court, the trial Court viz. Sub-Judge, Sangari, is hereby directed to number the set aside application and dispose of the same within a period of one month, by giving notice to either parties;
(c) on passing the order in set aside petition, the learned Sub-Judge, Sangari is directed to take up the petition on day to day basis, without giving any adjournments to either parties and to dispose the I.P.No.2 of 2004, since the petition is for the year 2004, within a period of two months. Both the parties are hereby directed to give their fullest co-operation for early disposal of the petition.
01.06.2017 Speaking Order Index:Yes vs To The Sub Judge, Sankari.
M.V.MURALIDARAN, J.
vs
Pre-Delivery order made in CRP(NPD)No.1466 of 2011
01.06.2017 http://www.judis.nic.in