IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.07.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.3697 of 2009 and M.P.No.1 of 2009 Mani @ Palanisamy ... Petitioner vs. Varadharaja Mudaliar ... Respondent This civil revision petition is filed against the fair and decreetal order dated 28.08.2009 in I.A.No.117 of 2008 in I.A.No.755 of 2007 in O.S.No.114 of 2000 on the file of the learned Additional District Munsif, Villupuram. For Petitioner : Mr.N.Suresh For Respondent : Mr. C.Prabhakaran ORDER
Inveighing the order dated 28.08.2009 in I.A.No.117 of 2008 in I.A.No.755 of 2007 in O.S.No.114 of 2000 on the file of the learned Additional District Munsif, Villupuram, this civil revision petition is focussed.
2. Heard both sides.
3. A ‘resume’ of facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The respondent/plaintiff filed the suit for partition. Whereupon, the defendants contested the matter and ultimately it ended in passing a preliminary decree. Thereafter final decree application was filed by the respondent/plaintiff and he obtained an exparte final decree, but it was set aside subsequently, at the instance of D5/the revision petitioner herein. In the meanwhile, the fifth defendant presented the appeal as against the preliminary decree with an application under Section 5 of the Limitation Act to get the delay condoned in filing the same and it is still pending in I.A.No.432 of 2008 in unnumbered A.S before the learned Principal Subordinate Judge, Villupuram. However, the very same revision petitioner/D5 filed an application before the trial court for staying the final decree proceedings,pending disposal of the aforesaid application under Section 5 of the Limitation Act by the Appellate Court. However, the trial court dismissed it.
4. Being aggrieved by and dissatisfied with the said order, this revision has been filed on the ground that if no stay is granted, the I.A itself will become infructuous.
5. The learned counsel for the revision petitioner placing reliance on the grounds of revision would submit that due opportunity should be given to the revision petitioner/D5 to pursue the matter before the Appellate forum as otherwise, he would be prejudiced.
6. By way of refuting and challenging, denying and gainsaying the contentions as put forth on the side of the revision petitioner/D5, the learned counsel for the respondent/plaintiff would submit that the record would speak by themselves that ample opportunity was given to D5/revision petitioner but without availing the same, he is protracting the proceedings. Hence, this revision itself is not maintainable.
7. The point for consideration is as to whether the stay of the final decree proceedings could be granted or not in the facts and circumstances of this case?
8. Trite the proposition of law is that the Appellate court before entertaining the appeal, should deal with the application under Section 5 of the Limitation Act to get the delay condoned. Normally, the lower court cannot grant stay before numbering the appeal. As such, the revision petitioner/D5 is incapacitated in that aspect. However, the lower court also may not be in a position to grant stay because it is only the lower court and it has to respect its own preliminary decree. As such, an impasse has been created, which the revisional court alone has to resolve it. No doubt, it is for the appellate court to consider whether there are laches on the part of D5 in preferring the appeal with delay. However pending disposal of that application under Section 5 of the Limitation Act, if the respondent/plaintiff obtains a final decree, itself, then virtually that would complicate the issue and as such in order to strike a balance between the two, I would like to pass order thus:
The final decree proceedings can be proceeded with by the Munsif court concerned but the final decree itself shall not be passed till pending disposal of the I.A.No.432 of 2008 under Section 5 of the Limitation Act by the Principal subordinate Judge, Villupuram and the Sub Court is directed to dispose of that Section 5 application within a period of three weeks from the date of receipt of a copy of this order. Registry shall mark copies of this order specifically to the lower court as well as the Appellate Court, viz., Principal Subordinate Judge, Villupuram. The revision petitioner herein shall take up the responsibility to get the copy of this order and present it before the Sub Court in all fairness and get the IA disposed of within the stipulated period.
9. With the above direction, , this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
vj2 05.07.2010 Index :Yes Internet :Yes Note: Issue order copy on 08.07.2010 To 1. The Additional District Munsif, Villupuram The Principal subordinate Judge, Villupuram G.RAJASURIA,J. vj2 C.R.P.(NPD).No.3697 of 2009 05.07.2010