A petition to condone delay in restoring an abated second appeal was dismissed. The court held the delay was inordinate and lacked good faith due to property transactions and non-disclosure of appeal pendency while handling the subject property.
Petition C.M.P.No.3851 of 2022 dismissed; judgment dated 21.10.2010 in S.A.No.493 of 1997 stands confirmed.
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C.M.P.No.3851 of 2022
C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
in S.A.No.493 of 1997
P.T.ASHA, J.,
This petition is filed to condone the delay of 4049 days in taking out a petition to set aside the judgment dated 21.10.2010 and restoring the second appeal to file.
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C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
3. Before considering the petitioners' case, it is necessary to
briefly touch upon the proceedings, which has resulted in the dismissal of the second appeal and the present petition seeking to restore it to file.
(i) The sole appellant had filed the suit O.S.No.10 of 1993 on the
file of the Additional District Munsif, Cuddalore for the reliefs set out herein below:-
“ jhth tiuglj;jpy; fz;Ls;s v/gp/vr;/,/rp[/o vd;W
Fwpg;gpl;Ls;s gFjp bghJtHpghij vd;w tpsk;g[if ghpfhuj;jpw;Fk; nkw;go bghJtHpghijapy; cs;s rp/o vd;w ntypia mfw;wp me;j bghJtHpghijia thjp mDgtpj;J
tu gpujpthjpfs; jil bra;ahtz;zk; epue;ju cWj;Jf;fl;lis
ghpfhuj;jpw;Fk; jhth tiuglj;jpy; fz;Ls;s ,/vg;/n$/gp/ vd;w Fwpg;gpl;Ls;s gFjp thjpf;F ghj;jpakhdJ vd;w tpsk;g[if ghpfhuj;jpw;Fk; nkw;go gFjpapy; cs;s $p/vr;/ vd;w ntypia
mfw;wp brhj;J RthjPdk; bgwt[k; nkw;go ,/vg;/n$/gp/ vd;w gFjpapy; fpilf;Fk; kfNy; Mjhak; jhth njjp Kjy; brhj;J RthjPdk; bgWk; tiuapy; thjpf;F fpilf;ft[k; kw;Wk; jhth bryt[j; bjhiff;Fk; tHf;F/ ”
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C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
The suit was decreed by judgment and decree dated 22.04.1994, against which, the defendants had filed an appeal in A.S.No.12 of 1994 on the file of the Subordinate Court, Cuddalore. The learned Subordinate Judge, Cuddalore had allowed the appeal and reversed the judgment and decree of the trial Court, namely, the Additional District Munsif, Cuddalore, against which, the plaintiff had filed the present second appeal. This second appeal was admitted on 02.03.1998 and notice was directed to the respondents. The second respondent had entered appearance through counsel. The first respondent had died pending the suit on 27.10.2002 and his death was reported on 20.02.2007. Despite giving several opportunities, the appellants had not come forward to bring on record the legal heirs of the deceased first respondent and therefore, this Court had dismissed the appeal as abated. This judgment was passed on 21.10.2010 in the presence of the learned counsels for the deceased appellant and 2nd respondent.
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C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
(ii) The petition to restore the appeal has been taken out only now i.e., on 25.02.2022 for the reasons set out supra. It appears that while the 2nd appeal was pending the sole appellant had died on 28.12.2009. This fact was not reported to the Court. The respondents have filed a counter affidavit, in which, they would categorically denied the contention of the petitioners that they had come to know about the pendency of the second appeal only in January 2022. It is their contention that on 20.04.2011, the second respondent had issued a legal notice to the 4th petitioner, Saravanan and one Shanmugam, S/o.Dhanusu Chettiar, in which, the dismissal of the second appeal has been clearly stated. They have further stated that the petitioners have approached this Court with a false case.
C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
pendency of the second appeal in the said deed. Thereafter, the said Saravanan had sold the property to one Shanmugam on 18.03.2011. Even in this deed, there is no mention about the suit or the second appeal. On the contrary, the recitals of the Sale Deed would indicate that the 4th petitioner had sold the property to the said Shanmugam free of encumbrances. Thereafter, the 2nd respondent has issued a legal notice dated 20.04.2011 to the said Saravanan and Shanmugam, in which the details about the dismissal of the second appeal has been clearly mentioned. This notice was received by both of them on 21.04.2011. On 27.04.2011, the said Saravanan had sold the property back to the 4th petitioner, Saravanan.
C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
applications to bring on record the legal representatives of both the appellant as well as the 1st respondent. This Court should not only look at the balance of convenience of the appellants but also the respondents. It is also seen that pending the appeal, the petitioners/appellants have dealt with the property and after the death of the sole appellant, the 4th petitioner has created encumbrances without attempting to set aside and restore the judgment passed in S.A.No.493 of 1997. Further, the appeal has been dismissed on the ground of appeal having abated.
C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
pendency of the second appeal is also hit by lis pendens. Accordingly, C.M.P.No.3851 of 2022 is dismissed. Since C.M.P is dismissed, the judgment dated 22.10.2010 passed in S.A.No.493 of 1997 stands confirmed.
16.12.2022
Index : Yes / No Speaking Order : Yes/No
srn
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C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
P.T.ASHA, J.,
srn
C.M.P.No.3851 of 2022 in S.A.No.493 of 1997
16.12.2022
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3 issues framed by the court
Whether the delay of 4049 days in restoring an abated second appeal should be condoned despite the death of the appellant.
Whether conduct regarding the property transfer during litigation negates good faith.
Whether condonation application is defeated by suppression of facts.
2 provisions across 2 enactments
Legal Representatives of sole Appellant
Sole Appellant
2nd Respondent
4th Petitioner (Saravanan)
Shanmugam
1st Respondent
P.T.ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
