Kasi Viswanathan vs Jayalakshmi Ammal and others

K.P. Sivasubramanim, J.—This is an application filed u/s 5 of the Limitation Act to condone the delay of 1850 days in filing the First Appeal

as against the judgment of the learned Judge, Chidambaram in O.S. No. 86 of 1981. The suit was filed by the plaintiffs/the first respondent herein

for a preliminary decree for partition and separate possession of the plaintiffs 1/4th share in the suit properties and for appointing a Commissioner

for the division of the properties. The petitioner before this Court seeking condonation of the delay is the 8th defendant being one of the alienees.

The suit was filed by one Jayalakshmi, claiming to be the wife of the deceased Ramamurthy. One Raja Iyer died in the year 1935 leaving behind

his two sons Duraisamy Iyer, the first defendant in the suit and C.R. Krishnamurthy, Sabesan and Ramamurthy are the sons of the first defendant.

Ramamurthy died in the year 1976 leaving behind Jayalakshmi his wife who is the plaintiff in the suit. The other defendants belong to the branch of

C.R. Krishnamurthy. Therefore, in the capacity of being the wife of Ramamurthy, the plaintiff filed the suit claiming l/4th share. The suit was,

however, decreed in favour of the plaintiff granting her 1/2 share in all the items of the property. However, the 8th defendant, the petitioner herein

remained ex parte,

As against the order setting him ex parte, the petitioner filed a petition under Order 9, Rule 13, C.P.C. for setting aside the said or parte decree.

The said application was dismissed and the appeal there from was also dismissed. As against the said order, C.R.P. No. 703 of 1992 was filed by

the petitioner herein. By judgment dated 19.03.1992, Srinivasan, J. as he then was, held as follows;

It is argued now that the plaintiff claimed only l/4th share, but the decree grants 1/2 share. That is a matter which has to be agitated by the

petitioner, if he has got any right, by either filing an application for amendment if it is a mistake, or by filing an appeal against the judgment. That is

not a ground on which the ex parte decree can be set aside.

Secondly, it is argued that the petitioner''s equities must be preserved. The equities of the petitioner, if any, are to be worked out only in the final

decree proceedings. That again is not a ground on which the ex-parte decree can be set aside.

I do not find any merit in the revision petition. Hence, the revision petition is dismissed.

Thereafter, the present appeal has been filed by the 8th defendant with a delay of 1850 days. According to the learned counsel for the

petitioner, the proportion of shares granted under the decree was erroneous. While the plaintiff herself had prayed only for l/4th share, the trial

Court has granted 1/2 share in her favour. It is further pointed out that after the death of Duraisamy Iyer the first defendant, his share has to be

allotted in favour of the alienee in equity and therefore in fact the plaintiff would be entitled only to l/6th share and not even l/4th share as prayed for

in the plaint. But, on the other hand, the trial Court has granted a decree for 1/2 share which was erroneous on the face of the decree. Therefore, in

equity, the 8th defendant is entitled to agitate the merits of the decree. He also interprets the observations of the learned Judge in disposing of the

C.R.P. No. 703 of 1992 as giving him liberty to pursue his remedy by way of an appeal.

The learned counsel for the applicant also relies on the judgment of the learned single Judge in Annapoomi v. Janaki (1995-I-L.W.141). In that

judgment, the learned Judge has exercised suo motu power in setting aside the proportion in which the properties were allotted. The learned Judge

held that even if there is no plea by the defendant, Court is bound to respect the provisions of law and apply the same correctly. The learned Judge

exercised Suo Motu Power under Sec. 115 (2), C.P.C. and held that the decree declaring the wife of a deceased Hindu as his sole heir, ignoring

the right of his mother as a coheir was illegal and thus required to be rectified.

Therefore, according to the learned counsel, the glaring error in the proportion of allotment of the shares would require interference by this

Court. He further submits that the delay was bona fide in as much as he was prosecuting the alternate remedy by way of a petition under Order 9

Rule 13 of C.P.C.

The learned counsel also relied on the observations in Mulla, Volume II, 15th Edition, Page 1338. The learned author, had commented that the

defendant against whom an ex parte decree is passed is at liberty, to apply to set aside the decree under Order 9 Rule 13 or to appeal from the

decree or to apply for a review of the judgment. He is entitled to apply under the said Rule to set aside the decree and at the same time to appeal

from the decree. Further he is also entitled to appeal from the decree without a previous application under Order 9, Rule 13 C.P.C.

Simultaneously, he is also entitled to apply for a review.

Per contra, the learned counsel for the respondents contends that when alternate reliefs were available for a party and the party has chosen to

file the petition under order 9 rule 13 and having availed of the said proceedings, it is not open to him to invoke another remedy, after he fails in his

application under Order 9, Rule 13, C.P.C. In support of his contention he relies on the following judgments:

Sumera v. Madanlal and others (AIR 1989 Madhya Pradesh 224)

Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury,

Ardha Chandra Rai Choudhary v. Matangini Dassi (I.L.R. 23 Calcutta 326)

Mathai Mathu v. Kutti Kunju Kovilammu Thanka Kovilamma (A.I.R. 1953 Travancore-Cochin 416 VOL.40, C.N.160)

Harishbhai Chunilal Shah v. Nalinkumar Champaklal Shah and others (A.I.R. 1995 Gujarat 197)

I have considered the submissions of both the sides. It is pertinent to note that in the petition under Order 9, Rule 13, C.P.C. the petitioner had

stated certain reasons for not appearing before the Court. The said issue was decided on merits and concurrently held against him also by the

Appellate Court and the Revisional Court. The observation of the learned Judge in C.R.P. No. 703 of 1992 to the effect that the petitioner was

entitled to file the petition for amendment if there was any mistake in the allotment of the shares or by filing an appeal against the judgment, was

only in dealing with the point raised by the learned counsel for the petitioner to the effect that there was an error in the allotment of his share.

Therefore, the observation of the learned Judge, cannot be taken as a permission or a licence to the petitioner and to justify the filing of a belated

appeal. It is not contended before me nor can it be contended that he was earlier prosecuting a remedy bona fide which was not maintainable in

law so as to claim the protection of Section 14 of Limitation Act. He was perfectly justified in pursuing one of the alternatives and having opted to

file the petition under Order 9 Rule 13 C.P.C. and having fully availed of the said proceedings, it is not open to him to take recourse to the other

alternatives, after he had failed in his petition under Order 9 Rule 13 C.P.C.

The Explanation to Order 9, Rule 13, also makes it clear that where there has been an appeal against a decree passed ex parte and the appeal

has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under Order 9, Rule

13 for setting aside that ex parte decree. The Explanation has been enacted only to ensure that the parties do not indulge in alternative proceeding

one after another.

Therefore, I am inclined to hold that the petitioner herein having availed his opportunity of seeking to set aside the decree under Order 9, Rule

13, it is not open to him to seek the remedy of appeal belatedly. It is no doubt open to him to simultaneously file an appeal after giving up the

petition under Order 9, Rule 13. But, having agitated his petition under Order 9, Rule 13 to its end, he cannot be permitted to invoke the alternate

remedy after the delay of more than six years. There should be a finality to the litigation.

As regards the grievance of the petitioner that the allotment of shares do not reflect the proper legal position, the very decision relied on by the

learned counsel for the petitioner in Annapoorni v. Janaki (1995 I L.W. 141) gives him the liberty to agitate the issue in the final decree

proceedings. In fact in the judgment in C.R.P. No. 703 of 1992 itself the learned Judge has indicated that it was open to the petitioner to seek for

an amendment if there was a mistake in the allotment of shares. Therefore, there was an alternate remedy open which he does not appear to have

invoked. Therefore, considering the fact that he has already availed of the remedy under Order 9, Rule 13, the enormous delay in filing the present

appeal cannot be condoned. With the result, the petition is dismissed. No costs.