The Madurai Bench dismissed a Civil Revision Petition challenging an order directing delivery of possession. The Court held that the petitioner could not object to delivery based on the remote possibility of restoring a default-dismissed appeal.
The Civil Revision Petition is dismissed. The order of delivery is not interfered with.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P(NPD)(MD)No.1246 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.08.2019
CORAM THE HON'BLE MR.JUSTICE S.S.SUNDAR C.R.P(PD)(MD)No.1246 of 2011 and M.P.(MD)No.1 of 2010
Samson Debase : Petitioner/Petitioner/ Respondent 1/Defendant 5
.. Vs ..
1.Anbiah Fernando @ X.A.Datroos (Died)
2.Jerold Datroos
3.Rajeswari Jawahar
4.Diona
5.Dester
6.Morning Star 7.Anusuya Giretta
: Respondents/Respondents/ Petitioners/Plaintiffs
8.Viruchachal
: Respondent/Petitioner/ Respondent 4/Defendant 8
PRAYER : Civil Revision Petitions filed under Article 227 of the Constitution of India, praying to set aside the order dated 26.04.2011 passed in E.A.No.8 of 2011 in E.P.No.22 of 2005 in O.S.No.743 of 1991 by the District Munsif, Sathankulam.
For Petitioner : Mr.G.Prabhu Rajadurai
Respondent 1 : Died For Respondents : Mr.M.P.Senthil 2 and 3
For Respondents : No appearance 6 & 7
Respondents 4, 5 & 8 : Died
ORDER
This Civil Revision Petition is directed against the order dismissing the petition in E.A.No.8 of 2011 in E.P.No.22 of 2005 in O.S.No.743 of 1991 to stay the order of delivery. The objection appears to be on the ground that an appeal preferred by the revision petitioner is pending. The fact that the petitioner has suffered a decree for recovery of possession is not in dispute. It is also https://hcservices.ecourts.gov.in/hcservices/ admitted that the appeal preferred by the revision petitioner was
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C.R.P(NPD)(MD)No.1246 of 2011
dismissed for default and of course, there is a possibility of restoration of the appeal. There is no stay and the matter is pending for more than nine years. Hence, the petitioner is not entitled to now object to the delivery on the ground that though the appeal was dismissed for default, it is likely to be restored. This Court is not inclined to interfere with the order of delivery. In case, the appeal is restored and the judgment and decree passed by the lower Court is set aside by the appellate Court, it is open to the revision petitioner to file a petition for restitution.
2.With the above observation, this Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
Assistant Registrar (Ad-II) // True Copy //
Sub Assistant Registrar(CS)
To
The District Munsif, Sathankulam.
+1 CC to Mr.M.P.SENTHIL, Advocate SR-79895. +1 CC to Mr.G.PRABHU RAJADURAI, Advocate SR-80075.
C.R.P(PD)(MD)No.1246 of 2011 05.08.2019
CS(20.08.2019) 2P 4C
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3 issues framed by the court
Whether a petitioner can object to the delivery of a decree if the appeal dismissing it was dismissed for default and there is a possibility of restoration.
Whether the High Court should interfere with an order of delivery when the revision petitioner held a decree for recovery of possession.
Whether a petition for restitution is the appropriate remedy if the judgment is set aside upon restoration of the appeal.
1 provisions across 1 enactments
Samson Debase
1.Anbiah Fernando @ X.A.Datroos (Died), 2.Jerold Datroos, 3.Rajeswari Jawahar, 4.Diona, 5.Dester, 6.Morning Star, 7.Anusuya Giretta, 8.Viruchachal
S.S.Sundar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court