Dismissed

Thangapappu Ammal (Deceased) Kamaraj (Deceased) 1. K. Pandian v. Lakshmi @ Periyapillai Ammal (Deceased) 1. T. Thamilselvi

Madras HC6 Dec 2024CRP/4967/2024

Case brief

AI extract

What is this about?

The Madras High Court dismissed a Civil Revision Petition filed under Article 226 challenging a final ex parte decree passed in a partition suit. The Court held that despite procedural lapses regarding notice, the bar of delay and the petitioners' conduct prevented reopening the matter.

What did the court decide?

Civil Revision Petition dismissed with no costs.

Thangapappu Ammal (Deceased) Kamaraj (Deceased) 1. K. Pandian Vs… — Partition | Madras HC (2024)

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C.R.P.No.4967 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.12.2024

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CORAM

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THE HON'BLE JUSTICE N.SATHISH KUMAR

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C.R.P.(NPD) No.4967 of 2024

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Thangapappu Ammal (Deceased) Kamaraj (Deceased)

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K.Pandian

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K.Babu

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K.Banupriya

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Rukmani

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... Petitioners/Defendants 2 to 5

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-vs-

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Lakshmi @ Periyapillai Ammal (Deceased)

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T.Thamilselvi

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T.Amutha

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... Respondents/Plaintiffs

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(Cause Title accepted vide Order dated 25.11.2024)

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Prayer : Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the illegal ex parte judgment and decree passed in O.S.No.53 of 1994 dated 14.11.2000 by the Subordinate Court, Villupuram. For Petitioners : Dr.C.Ravichandran For Mr.S.B.Viswanathan

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.4967 of 2024

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O R D E R

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A challenge has been made to the impugned order dated 14.11.2000 passed in O.S.No.53 of 1994 by the Subordinate Court, Villupuram, by which the suit was decreed ex parte in favour of the plaintiffs and against the revision petitioners.

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Notice to the respondents is dispensed with, as no adverse order is going to be passed against them.

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It is the case of the petitioners / defendants 2 to 5 in the suit that the petitioners 1 to 3 are the children of 4^th petitioner and one Thangavel Padayachi had two wives. His 1^st wife was Lakshmi @ Periyapillai Ammal and the 2^nd wife was Thangapappu Ammal. The 1^st respondent is the daughter of Lakshmi @ Periyapillai Ammal and the 2^nd respondent is the daughter of the 1^st respondent. It is further case of the petitioners that Lakshmi @ Periyiapillai Ammal along with her daughter Thamil Selvi and granddaughter Amutha filed a suit against Thangapappu Ammal and her son Kamaraj in O.S.No.484 of 1992. During the pendency of the suit, 2/6

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https://www.mhc.tn.gov.in/judis

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C.R.P.No.4967 of 2024

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Kamaraj died intestate on 28.03.1994, leaving behind his wife and 4^th petitioner as legalheirs and they were impleaded as Defendant Nos.3 to 6 in the suit. Subsequently, the suit has been transferred to Sub-Court, Villupuram and renumbered as O.S.No.53 of 1994. During pendency of the said suit, Thangapappu Ammal (1^st defendant in the suit), died intestate on 11.09.2015. As the defendants did not contest the suit, they were set ex parte and an ex parte judgment and decree dated 14.11.2000 were passed by the Sub-Court, Villupuram.

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It is also the case of the petitioners that thereafter, the suit in O.S.No.53 of 1994 was once again transferred to the Principal District Munsif Court, Ulundurpet and re-numbered as O.S.No.86 of 2004. Before the said Court, I.A.No.284 of 2004 was taken out by the plaintiff for passing a final decree and subsequently, an Execution Petition has also been filed in E.P.No.23 of 2016 in O.S.No.868 of 2004. In the said Execution Petition, the 3^rd petitioner filed E.A.No.155 of 2019 to set aside the ex parte order dated 18.01.2019, which was dismissed by the Principal District Munsif, Ulundurpet on 05.03.2020. The yet another E.A.No.13 of 2020 filed by the

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C.R.P.No.4967 of 2024

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respondents 1 & 2 also came to be dismissed. Aggrieved by both dismissal orders, C.R.P.Nos.97 and 98 of 2021 have been filed before this Court, which were dismissed by this Court on 11.07.2023.

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It is averred in the petition that after consultation with their Advocate about the scope of filing a Special Leave Petition, the instant Civil Revision Petition has been filed, as it was opined that there was no merit to prefer a Special Leave Petition. According to the petitioners, ex parte decree is not in terms of Order XX Rule 4 & 5 of CPC and challenging the same, the present Civil Revision Petition has been filed.

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Learned counsel for the revision petitioners submitted that at the time of filing the suit, the petitioners 1 to 3 were minors. Further, Item Nos.1 & 2 were exchanged by way of registered documents by playing fraud and hence, seeks to set aside the ex parte order by invoking the provision of Article 227 of the Constitution of India. In support of his submissions, he also relied upon various judgments of this Court.

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C.R.P.No.4967 of 2024

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I have perused the material documents available on record.

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The ex parte order has been passed in the year 2000 and almost 24 years have gone by. Of course, the decree is not in consonance with Order XX Rule 4 & 5 of CPC. However, the fact remains that the petitioners are aware of these proceedings all these years and in fact, they contested the matter upto the execution stage. They also challenged the execution proceedings before this Court in C.R.P.Nos.97 and 98 of 2021 and this Court, by an order dated 11.07.2023 observed that the plea of minority is only a smoke screen projected for the purpose of getting over the decree and that the decree is for a partition and as already pointed out, 29 years have gone by.

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The revision petitioners have not taken any steps

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immediately after attaining majority and contested the matter in the execution proceedings after final decree and earlier, Civil Revision Petitions were also dismissed by this Court. Now, taking advantage of the fact that the decree and judgdment are not in terms of Order XX Rule 4 & 5, the

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C.R.P.No.4967 of 2024

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N.SATHISH KUMAR,J.,

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petitioners attempt to reopen the ex parte decree at this stage, which had reached finality long back. Non compliance of Order XX Rule 4 & 5 alone is not a ground to set aside the ex parte decree, in view of the conduct of the parties all these years and the delay in approaching this Court. Originally, the suit was filed in the year 1992 and more than 30 years are over. The petitioners now want to unsettle the settled issue, for which, this Court is not inclined to invoke its power merely on the ground of ex parte decree.

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In fine, finding no merits in the argument advanced by the revision petitioners, this Civil Revision Petition is dismissed. No costs.

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06.12.2024

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Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order ar

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To:

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Subordinate Judge, Villupuram

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Principal District Munsif, Ulundurpet

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C.R.P.(NPD) No.4967 of 2024

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https://www.mhc.tn.gov.in/judis

Thangapappu Ammal (Deceased) Kamaraj (Deceased) 1. K. Pandian v. Lakshmi @ Periyapillai Ammal (Deceased) 1. T. Thamilselvi

Case brief

What is this about?

What did the court decide?

Thangapappu Ammal (Deceased) Kamaraj (Deceased) 1. K. Pandian v. Lakshmi @ Periyapillai Ammal (Deceased) 1. T. Thamilselvi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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