BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/11/2009 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)MD.No.969 of 2009 R.S.Pandiya Pillai (died) ...Petitioner/Plaintiff 1.Tmt.Thangam 2.Tmt.Ponuthai 3.Tmt.Amaravathi 4.M.Ramakrishnan 5.Tmt.Lakshmi 6.Tr.Arunagiri ...Petitioners/3rd parties vs. 1.Botha Raj 2.Pooranathammal ...Respondents/Defendants Prayer Civil Revision Petition filed under under Article 227 of the Constitution of India, against the petition and order, dated 17.12.2008 made in unnumbered E.A.No. /08 in (E.A.No.49 fo 2007) in E.P.No.495 of 2004 in O.S.No.613 of 2004 on the file of the Principal District Munsif Court, Dindigul. !For Petitioners ... Mr.Anand Chandrasekar ^For Respondents ... No appearance :ORDER
O.S.512 of 2002, on the file of the Sub Court, Dindigul, was filed by
Thiru.R.S.Pandiya Pillai, against the respondents herein and the suit was
decreed on 23.03.2004. The said decree-holder filed E.P.No.495 of 2004, for
executing the decree for recovery of Rs.75,920/- with interest by attaching the
property of the Judgment-debtor and in that E.P., he was permitted to bid in the
auction and he was the successful bidder in the auction and hence, he filed
E.A.No.49 of 2007 for delivery on 16.02.2007. The said decree-holder died on
02.04.2007 and that fact was not known to the counsel appearing on his behalf
and on 11.06.2007, a memo was filed informing the court that the
petitioner/decree-holder was dead and the case was adjourned for taking steps on
30.08.2007, but that application was dismissed for default as steps were not
taken. Thereafter, the legal-heirs of the decree-holder filed E.A. – /2008,
to restore the E.A.No.49 of 2007 on file on 05.09.2008 and that application was
filed under Order 21 Rule 106(1) CPC and the lower court dismissed the
application without numbering the same stating that application under Order 21
Rule 106(1) CPC should be filed within 30 days from the date of the order and in
this case, it was filed beyond 30 days’ time and hence, the application is not
maintainable. Aggrieved by the order, the present revision is filed by the
legal-heirs of the decree holder.
2.Mr.Anand Chandrasekar, the learned counsel appearing for the
petitioners, submitted that while filing the application for restoration, by
mistake they have quoted Order 21 Rule 106(1) C.P.C and it must be construed as
filed under Order 22 Rule 4 C.P.C. and therefore, there is no question of
limitation.
3.Further, it is stated in the affidavit that on 20.08.2008 they contacted
their Advocate for consolation, they were informed about the dismissal of the
E.A.No.49 of 2007 and immediately, they have filed the application.
4.According to Order 21 Rule 106(3) C.P.C, an application under Sub-
rule(1) shall be made within 30 days from the date of the order or where, in the
case of an ex-parte order, the notice was not duly served, within thirty days
from the date when the applicant had knowledge of the order.
5.In this case, according to the petitioners, they have came to know about
the dismissal of the order on 28.08.2008 and they have filed the application for
restoration on 05.09.2008. Hence, even assuming that the application was filed
under Order 21 Rule 106 C.P.C, as the application was filed within 30 days from
the date of knowledge the application was filed in time. The lower court without
appreciating these aspects, rejected the application and hence, the order of the
lower court is set aside.
6.In fine, this civil revision petition is allowed and the lower court is
directed to take up the application on file and dispose of the same in
accordance with law.
er
To,
The Principal District Munsif,
Dindigul.