The Madurai Bench of the Madras High Court dismissed the second appeal filed under Section 100 of the Civil Procedure Code for non-prosecution after the appellants failed to appear despite multiple adjournments and cause-list entries.
The Second Appeal was dismissed for non-prosecution. No costs awarded.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 12.01.2017
Coram
The HONOURABLE MR.JUSTICE M.DURAISWAMY
S.A(MD)No.869 of 2011
1.Annammal 2.Lourdhu Mary .. Appellants/Appellants/Respondents/ Defendants
Vs.
1.Stella Pushpa Bai
Prayer:- Second Appeal has been filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 12.04.2011 made in A.S.No.107 of 2010 on the file of the I-Additional Sub Court, Nagercoil (Camp at Padmanabhapuram), confirming the Judgment and Decree, dated 02.09.2010 made in I.A.No.724 of 2009 in O.S.No.121 of 1981 on the file of the Principal District Munsif Court, Padmanabhapuram.
For Appellants : No appearance For Respondents : Mr.V.M.Balamohan Thambi
JUDGMENT
When the matter was listed for hearing on 03.01.2017, the learned counsel appearing for the respondents submitted that pursuant to the final decree passed in I.A.No.724 of 2009 in O.S.No.121 of 1981 on the file of the Principal District Munsif Court, Padmanabhapuram, the plaintiffs have filed an Execution Petition in E.P.No.88 of 2010 on the file of the Principal District Munsif Court, Padmanabhapuram and also took possession of the properties allotted to them. Further, the learned counsel submitted that the Execution Petition was also terminated by the Executing Court. In these circumstances, the learned counsel for the respondents submitted that nothing survives for adjudication in the Second Appeal. However, the learned counsel for the appellants https://hcservices.ecourts.gov.in/hcservices/ sought a week's time for getting instructions. Hence, the matter was adjourned to 10.01.2017.
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2.On 10.01.2017, the learned counsel appearing for the appellants submitted that he has sent a letter to the appellants with regard to the order passed in the Execution Petition, however, he has not received any reply from them so far. The learned counsel reported 'no instructions' and also he has also made an endorsement to that effect. In view of the same, the Registry was directed to print the name of the appellants in the cause-list and list the matter on 11.01.2017.
3.On 11.01.2017, though the names of the appellants have been printed in the cause-list, none appeared for the appellants. Hence, the matter was adjourned to today ie., 12.01.2017 under the caption 'for dismissal'. Today also, though the names of the appellants have been printed in the cause-list, none appeared for the appellants. Hence, this Court has no other option to dismiss the Second Appeal for non-prosecution.
4.Accordingly, this Second Appeal is dismissed for nonprosecution. No costs.
Sd/-
Assistant Registrar(Records)
/True Copy/ Sub Assistant Registrar To
1.The I-Additional Sub Judge, Nagercoil (Camp at Padmanabhapuram).
2.The Principal District Munsif, Padmanabhapuram.
+1cc to Mr. V.M.BALA MOHAN THAMPI, ADVOCATE, SR NO.2732 ps
MAS/MSM-JM:31.01.2017:2P/4C
S.A(MD)No.869 of 2011 12.01.2017
2 issues framed by the court
whether the second appeal can be adjudicated upon when appellants failed to appear for two consecutive hearings
whether the non-prosecution of the appeal warrants its dismissal
1 provisions across 1 enactments
Annammal
Lourdhu Mary
Stella Pushpa Bai
Thomas Penson
Thangam
Thampiraj
M.DURAISWAMY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
