Ponnammal, C. Venkatachalam and C. Thangamuthu vs S.V. Subramanian

S. Tamilvanan, J.—Heard Mr. N. Manoharan, learned Counsel appearing for the Petitioners and Mr. A.R.L. Sundaresan, the learned

Senior counsel for the Respondent.

This revision has been preferred challenging the order dated 06.11.2009 made in I.A. No. 168 of 2008 in O.S. No. 536 of 1997 on the file of

the Second Additional Subordinate Court, Erode.

It is not in dispute that the Respondent herein had filed a suit in O.S. No. 536 of 1997 against the Defendants 10, 12 and 13 who were

Petitioners 1 to 3 herein. After filing the suit, the Petitioners herein were arrayed as Defendants 10, 12 and 13, on the ground that they purchased

certain shares from the first Defendant namely Mr.Veerappa Gounder (died).

According to the learned Counsel appearing for the Petitioners, an exparte decree was passed on 18.09.1996 by the Court below on

18.09.2006. To set aside the exparte decree, the Petitioners have filed an application under Order 9 Rule 13 CPC along with petition u/s 5 of the

Limitation Act to condone the delay of 679 days in filing the petition to set aside the exparte decree. By the impugned order, the said petition, u/s 5

of the Limitation Act filed by the Petitioners was dismissed by the Court below. Aggrieved by which, the Petitioners herein have preferred the

present revision.

Learned Counsel appearing for the Petitioners further submitted that though the Petitioners herein purchased the entire first item of the Schedule

of property from the first Defendant, their substantial rights could be adjudicated. The learned Counsel appearing for the Petitioners also further

submitted that the other Defendants contested the matter, however, the Preliminary Decree passed so far as against the Petitioners was only an

exparte decree and therefore the unnumbered petition filed under Order 9 Rule 13 CPC was along with a petition u/s 5 of the Limitation Act was

maintainable. After receiving the summons in the suit, the Petitioners have approached the second Defendant, son of the first Defendant and he

knows the rights of the Petitioners would be defended by him by engaging an advocate to defend the case of the Petitioners. According to the

learned Counsel for the Petitioners, for the purpose of engaging a counsel, the Petitioners have paid a sum of Rs. 500/- each to the second

Defendant and also signed in a Vakalat.

As contended by the learned Senior Counsel appearing for the Respondent, there is no proof for the said averments of the Petitioners and

further the defence raised by the Petitioners is not legally sustainable. The learned Senior Counsel contended that admittedly the Petitioners

purchased only a portion of the suit property. Hence, ''lis pendens'' is applicable and therefore the Petitioners need not be arrayed as Defendants in

the suit. Any how, the Petitioners 1 to 3 were arrayed the Defendants 10, 12 and 13 in the suit, since they remained absent and they were set

exparte. However, other Defendants contested the suit and decree was passed on 18.09.2006 and therefore, it is only a contested decree, which

cannot be set aside under order IX Rule 13 CPC Subsequently, final decree application was filed and notice was also served on the Petitioners on

20.06.2007. However, the Petitioners have not filed any application to condone the delay and to set aside the alleged exparte decree immediately.

The Petitioners herein filed a petition relating to the impugned order only on 26.02.2008 though final decree application was filed and final decree

was also passed on 27.11.2009. According to the learned senior counsel for the Respondent, the absence of the Petitioners as Defendants in the

suit, the delay could be construed only as deliberate negligence. If the petition is allowed the Court has to set aside the preliminary decree passed

in favour of the second Respondent and also the final decree. Though the final decree was passed nearly 14 years after filing of the suit.

The learned senior counsel drew the attention of this Court, that the Interlocutory Application was filed by the Petitioners only against the

Respondent/Plaintiff is not legally sustainable. Without impleading the other Defendants as parties in the Interlocutory Application, by raising

allegations the other Defendants in the suit, the Petitioners who are Defendants 10, 12 and 13 have challenged the preliminary decree as well as

final decree, hence the same is not maintainable.

Mr. N. Manoharan, the learned Counsel appearing for the Petitioners in support of his contention relied upon a decision in Bank of India Vs.

Mehta Brothers and Others, , wherein the Hon''ble Supreme Court has held that the petition under Order 9 Rule 13 CPC Could be maintainable,

in case of a decree being passed wherein some of the Defendants contested the same, the Hon''ble Supreme Court has held as follows:

Keeping this interpretation of the first proviso to Order 9 Rule 13 of the Code in mind, let us now take up the other question to be answered in

this case, which is whether a decree can be set aside against a Defendant against whom the suit has been dismissed on contest. At the first blush,

we thought it fit to think that a Defendant who contested a suit and got the suit dismissed on contest it would be unjust to call back the said

Defendant who had already contested the matter and got the suit dismissed. This is because, it would amount to jeopardising his interest but it

would also result in unending litigation for him. Therefore, before expressing any opinion on the issue posed before us, we have to solve this aspect

also. For this reason, we wish to ascertain that there cannot be a rigid answer to this problem. As regards the question as to whether the term

decree"" in the first proviso connotes exparte decree or the decree in general, we have already come to a firm opinion, as discussed hereinabove,

that is actually meant a decree in general. It may be kept on record that, in our view, the intention of the legislature is to use the word ""decree"" in

the first proviso to mean decree in general in view of the changes in the expression made in the Code of Civil Procedure, 1882 and the Code of

Civil Procedure, 1908.

Therefore, keeping this in mind, let us now consider whether a contested decree by some of the Defendants can be set aside while considering

the application for setting aside the exparte decree against one of the Defendants. This would, in our view, certainly depend on the nature of reliefs

claimed by the Plaintiff in his plaint and the nature of the decree in question. If the decree is indivisible, the Court would be at liberty to set aside the

decree not only against the Defendant who applied for setting aside the exparte passed against him, but also as against all or any of the other

Defendants

It is made clear by the Hon''ble Supreme Court that if when the decree is divisible and a part of the decree relates to the Defendants and petition

filed under Order 9 Rule 13 CPC could be set aside, since it could not affect the other Defendants'' rights if it is indivisible, the Court has to

consider and pass orders only in rarest of rare cases, to meet the ends of justice. In the instant case, Petitioners having been impleaded as

Defendants 10, 12 and 13 entered appearance before the Court below, but were set exparte due to non-appearance. Learned senior counsel

appearing for the Respondent further submitted that the petition relating to the impugned order was filed u/s 5 of the Limitation Act to condone an

inordinate delay of 679 days. There is no satisfactory explanation from the Petitioners for the inordinate delay caused by them. Though notice was

served on the Petitioners on 20.06.2007 in the final decree application, they failed to file petition u/s 5 of the Limitation Act immediately. Nearly 8

months later, after receipt of notice in the final decree application, they filed a petition on 20.06.2008. It would show that the delay is willful and

wanton. When the delay is not satisfactorily explained, the petition could be dismissed, on that ground and further dismissing the revision petition

would not lead to failure of substantial justice. In the instant case, the Petitioners have stated that they approached the second Defendant after the

death of the first Defendant, who assured them that he would engage some advocate to defend the case of the Petitioner which caused the delay of

679 days. The aforesaid reasons cannot be legally acceptable. The Petitioner claim is only against their vendor, which is subject to his share in the

property and not more than that. The Petitioner cannot raise a defence that the Petitioners/vendors or his son had assured them to defend the case

of the Petitioners, hence there was delay. The inordinate delay has not been explained by the Petitioners satisfactorily as found by the Court below.

Similarly, dismissal of the petition would not be against substantial justice being rendered, in this case.

On the other hand, allowing this petition after passing the final decree against the Respondent and other contesting Defendants would certainly

cause prejudice to the rights of the Respondent/decree holder and accordingly I am of the view that the revision is liable to be dismissed.

In the result, the Civil Revision Petition dismissed. Consequently, miscellaneous petition is closed. No order as to costs.