BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/04/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)(MD)No.1267 of 2008
&
C.R.P.(PD)(MD)No.1268 of 2008
and
M.P.(MD)No.1 of 2008
CRP(PD)(MD)No.1267 of 2008
1.Kasturi ... Petitioner/9th defendant
2.G.Mathivanan
3.G.Ilangovan
4.I.Shanthi
5.M.Kamini
6.M/s.Mekala Agenciesm
rep. by one of its partner
G.Suseela
[implead as per order dated 05.02.2009
made in M.P.No.2 of 2008] ... Petitioners 2 to 6
vs
Saravanan @ Sakthi Saravanan ... Respondent/Plaintiff
Prayer
Civil Revision Petitions filed under section 115 of the Civil
Procedure Code, to set aside the fair order and decretal order in I.A.No.50 of
2008 in O.S.No.349 of 1995, on the file of the Principal Subordinate Judge,
Madurai, dated 15.02.2008
CRP(PD)(MD)No.1268 of 2008
1.Bommi & Jayalakshmi … Petitioner/8th defendant
2.G.Mathivanan
3.G.Ilangovan
4.I.Shanthi
5.M.Kamini
6.M/s.Mekala Agenciesm
rep. by one of its partner
G.Suseela
[implead as per order dated 05.02.2009
made in M.P.No.1 of 2008] … Petitioners 2 to 6
vs
Saravanan @ Sakthi Saravanan … Respondent/Plaintiff
Prayer
Civil Revision Petitions filed under section 115 of the Civil
Procedure Code, to set aside the fair order and decretal order in I.A.No.49 of
2008 in O.S.No.349 of 1995, on the file of the Principal Subordinate Judge,
Madurai, dated 15.02.2008
!For Petitioners … Mr.S.Ramesh
for V.Raghavachari
^For Respondent … Mr.M.R.MUrugesan
:COMMON ORDER
Heard both sides
2.The defendants 8 and 9 in O.S.No.349 of 1995, on the file of the
Principal Subordinate Judge, Madurai, are the revision petitioners.
3.The suit was filed by the respondent herein for partition of 6/80th
share in the ‘A’ schedule item Nos.1 to 3 and 1/12th share in the ‘B’ schedule
Item No.1 to 10 and for mesne profits from the defendants 15 to 18, who are in
illegal occupation of the Item No.1 of the suit “A schedule properties.
4.The case of the plaintiff/respondent herein was that the property
originally belonged to M.S.Ayyasamy Pillai, who got the property under a
partition deed, dated 21.12.1925 and he died on 20.05.1942 leaving behind his
widow Sankarammal, his daughter Mrs.Vijayalakshmi and sons, defendants 1,3 and 6
and other defendants. As M.S.Ayyasamy Pillai, died prior to Indian Succession
Act 1956, the three sons are entitled to 1/4th share each in the house property
viz., the ‘A’ schedule property and in respect of ‘B’ schedule property, which
are agricultural properties, the sons are entitled to 1/3rd share each. After
the death of Sankarammal, the defendants 1,3 and 6 and her daughter
Vijayalakshmi and Sulochana inherited the share in the ‘A’ schedule property.
The 8th defendant is the daughter of the 6th defendant, who is son of
M.S.Ayyasamy Pillai and the 9th defendant is the wife of the 6th defendant. The
suit was contested by the defendants 10,15,22 and 24 and they filed a written
statement. The 6th defendant remained ex-parte and the 8th and 9th defendant
also remained ex-parte. Therefore, an ex-parte order was passed against them and
after the evidence of the plaintiff was closed and during the examination of the
defendants witnesses, the 8th and 9th defendants viz., the revision petitioners
herein filed two petitions to set aside the ex-parte order passed against them.
That application was dismissed by the lower Court on the ground that they were
set ex-parte on 22.08.1997 and the application was filed on 22.08.2000 after a
lapse of 12-1/2 years and therefore, relying upon the judgment reported in AIR
2007 Kerala 301, in the case of C.L.Cleetus vs. South Indian Bank Ltd., and
another, held that the application ought to have been filed within three years,
under Article 137 of the Limitation Act and having filed beyond the period, the
petition is not maintainable. Aggrieved by the same, these civil revision
petitions are filed.
5.Mr.S.Ramesh, the learned counsel appearing for the revision petitioners
submitted that to set aside the ex-parte order, there is no period prescribed
under Limitation Act and before passing of the judgment and decree in the suit
at any time the defendants, who were set ex-parte can file an application to set
aside the ex-parte order and the lower Court erred in following the judgment of
the Kerala High Court and dismissed the application.
6.He further submitted that as per the judgment reported in 1997(1) MLJ 37
in the case of Pilla Reddy and others vs. Thimmaraya Reddy and others & 1989(2)
MLJ 259 in the case of Palani Nathan vs. Devanai Ammal, no period of limitation
has been prescribed to set aside the ex-parte order and the application to set
aside the ex-parte order filed is in time.
7.Per contra, the learned counsel appearing for the plaintiffs/respondents
relied upon the judgment of this court reported in 2005(3) MLJ 379 in the case
of Rajaji vs. R.Krishnaji, wherein it has been specifically held that Article
137 of the Limitation Act applies in case where application is filed to set
aside the ex-parte order and as per the said article, within three years the
order is to be set aside and hence, the petition has been rightly dismissed by
the lower Court and that need not be interfered with.
8.I have given my anxious consideration to the submissions made by both
parties.
9.No doubt, in the judgment reported in 2005(3) MLJ 379, in the case of
Rajaji vs. R.Krishnaji, the learned Judge distinguished the difference between
the ex-parte decree and the ex-parte order and held that Article 123 shall apply
only to ex-parte decree or ex-parte order, which have the force of decree and in
so far as setting aside the ex-parte order is concerned, the residuary Art. 137
will apply which prescribes three years period and therefore, the petition filed
after a lapse of three years cannot be entertained. But, as pointed by the
learned counsel appearing for the petitioner, in the judgment of this Court
reported in 1997(1) MLJ 37, in the case of Pilla Reddy and others vs. Thimmaraya
Reddy & others and in 1989(2) MLJ 259, in the case of Palani Nathan vs. Devanai
Ammal wherein the two learned Judges of this Court have held that there is no
time prescribed to set aside the ex-parte order and an ex-parte order can be set
aside at any time and the learned Judges referred the judgments of the
Honourable Supreme Court in the case of Sangram Singh vs. Election Tribunal,
Kotah, 1955(1) MLJ SC 13 = A.I.R.1955 SC 425 and also other judgments of this
Honourable Court and held that there is no limitation for setting aside the ex-
parte order. The aforesaid two judgments were not brought to the knowledge of
the learned single Judge who decided the case reported in 2005(3)MLJ 379. In the
judgment reported in 1989 (2) MLJ 259 in the case of Palani Nathan vsi. Devanai
Ammal, this Court has held that for filing the application under Order 9 Rule 7
CPC, no limitation is prescribed and it is open to the Court to condone her
absence and set aside the ex-parte order and permit her to take part in the
proceedings at any stage of the proceedings. Further relying upon the Supreme
Court judgment reported in AIR 1955 SC 425, wherein their Lordships have held
that there is no limitation for filing the petition under Order 9 Rule 7 CPC.
Therefore, as per the judgment of the Honourable Supreme Court, which was
followed in 1989(2) MLJ 259, in my opinion, the lower Court erred in following
the judgment of the Kerala High Court and dismissed the petition.
10.According to me, the aforesaid two judgments of our High Court was not
brought to the notice of the learned Judge who decided the case in 2005(3)MLJ
379 and the earlier two judgments of this Court followed the judgment of the
Honourable Supreme Court and hence, I am bound by the judgment of the Honourable
Supreme Court, which was followed in 1997(1) MLJ 37 and 1989(2) MLJ 259.
11.Hence, the order of the lower Court is set aside and both the civil
revision petitions are allowed. Consequently, connected Miscellaneous Petition
is closed. No costs.
er