BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 31.03.2009 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.R.P.(NPD).No.397 of 2008 and M.P.No. 1 of 2008 K.Mahesh .. Revision Petitioner / 1st petitioner / D1 Vs. 1.Jayapriya Financiers through its power agent A.Sekar, No.30, Main Road, Neyveli-2. .. 1st respondent / Respondent / Plaintiff 2.M.A.Priyanatham .. 2nd Respondent / 2nd respondent / D2 Prayer :- This Civil Revision Petition has been preferred under 115 of CPC against the order dated 04.12.2007 in I.A.No.579 of 2006 in O.S.No.14 of 2004 on the file of the District Musiff-cum-Judicial Magistrate, Neyveli. For Petitioner : Mr.P.Mani, Advocate For Respondents : Mr.S.Santhiamurthi, Advocate (For R1) For R2 No appearance ORDER
This revision has been directed against the order passed in I.A.No.579 of 2006 in O.S.No.14 of 2004 on the file of the District Musiff-cum-Judicial Magistrate, Neyveli.
2.When O.S.No.14 of 2004 was in a part heard stage, there was no representation for the revision petitioner / 1st applicant in I.A.No.579 of 2006. In spite of several adjournments being given to the defendants to cross-examine P.W.1, they have not availed the same. Under such circumstance, an exparte decree was passed in the suit on 04.11.2006. To set aside the exparte decree I.A.No.579 of 2006 was filed by the defendants. The learned trial Judge has allowed the said application, after considering the averments in the affidavit to the petition as well as the counter statement, on condition the applicants deposit Rs.10,000/- on or before 11.12.2007 to the credit of O.S.No.14 of 2004. Aggrieved by the said conditional order, the 1st defendant has preferred this revision.
3.When the matter was taken up, the learned counsel for the revision petitioner would contend that even in the order passed in I.A.No.579 of 2006 the learned trial Judge has observed that the respondent in the said IA has made an endorsement in the petition itself as to the effect that the petition can be allowed only if the applicants prepare to deposit one half of the decree amount and that the decree holder / plaintiff had filed EP.No.222 of 2005 in O.S.No.14 of 2004 under Order 21 Rule 37 & 38 of CPC and in the said EP they have already paid Rs.33,500/- i.e., 50% of the decree amount.
4.The suit cost and EP cost come to more than Rs.5,000/-. Under such circumstances, I am of the view that the order passed in I.A.No.579 of 2008 in O.S.No.14 of 2004 is liable to be modified.
5.In fine, the Revision is allowed and the order passed in I.A.No.579 of 2006 in O.S.No.14 of 2004 on the file of the learned District Munsif-cum-Judicial Magistrate, Neyveli, is modified. The Revision petitioner is directed to deposit a sum of Rs.5,000/- instead of Rs.10,000/- on or before 20.04.2009 to the credit of EP.No.222 of 2005 in O.S.No.14 of 2004 on the file of the District Munsiff cum- Judicial Magistrate, Neyveli, failing which the Revision shall deem to have been dismissed. Connected Miscellaneous Petition is closed. No costs.
31.03.2009
Index :Yes/No
Web :Yes/No
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NOTE: Issue Today.
To,
The District Munsif-cum-Judicial Magistrate,
Neyveli.
A.C.ARUMUGAPERUMAL ADITYAN, J.
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C.R.P.(NPD).No.397 of 2008
and
M.P.No. 1 of 2008
31.03.2009