K.Sundararajan, v. A.Srinivasan

ORDER This petition has been filed to set aside the fair and decreetal order dated 08.12.2022 in R.E.A.No.3 of 2022 against E.A.No.93 of 2018 in E.P.No.177 of 2016 in O.S.No.195 of 2005 on the file of the learned Principal Sub Court, Karur.

2.The petitioner is the second defendant in O.S.No.195 of 2005 filed by the first respondent against the second respondent herein. After the suit was initiated, the petitioner purchased a property from the second respondent (the sole defendant) by a sale deed dated 11.09.2006 during the pendency of O.S.No.195 of 2005. Hence, the petitioner was also impleaded as second defendant in the said suit. Thereafter, as the second defendant in the said suit/petitioner herein has filed a written statement on 08.07.2012. The suit was decreed as prayed for by the Trial Court on

08.01.2014. Aggrieved by the same, the petitioner filed A.S.No.42 of 2014 which was dismissed for non-prosecution on 04.11.2015.

3.According to the petitioner, an application for restoration of Appeal is still pending before the First Appellate Court. However, no steps have been taken. Mean while, the first respondent (plaintiff in O.S.No.195 of 2005) filed E.P.No.177 of 2016. In the said E.P, delivery was ordered. The first respondent also filed E.A.93 of 2018 in E.P.No. 177 of 2016 for possession of suit property. Against which, the petitioner has filed REA.No.2 of 2022 and REA.No. 3 of 2022 under Section 47 of CPC and for appointment of an Advocate Commissioner and the same was dismissed by the Subordinate Judge, Karur. Hence, the petitioner filed this present Civil Revision Petition.

4.The specific case of the petitioner is that the petitioner has put up a construction over the suit schedule property whereas, the schedule in the plaint and in E.P proceedings indicates that the property is a vacant site property. It is submitted that the Trial Court is committed a grave error in rejecting the application filed by the petitioner under Section 47 of CPC for appointment of an Advocate Commissioner to give a report as to the presence of a construction put up by the petitioner.

5.The relevant portion of the impugned order reads as under:- ",e;j nfhUhpik kDtpy; kDjhuh; jdJ tHf;fpid chpa rhl;rpfs; kw;Wk; rhd;whtzq;fs; K:yk; epU:gpf;f ntz;Lnk jtpu mtUila kDit epU:gpg;gjw;F Mizah; epakdj;jpw;F kD jhf;fy; bra;a KoahJ. nkYk;>

epiwntw;W

kDr;

brhj;jpd;

jy mk;rq;fs; ,t;tHf;fpy; jPh;t[f;Fw;w rq;fjpahf ,y;iy. nkYk; epiwntw;Wif kD brhj;Jf;fs; vJ vd;gjpYk; gpur;rid ,y;iy. nkYk;> Mizah; epakdj;jpw;fhd kDthdJ rhl;rpfis nrfhpg;gjw;fhf (for collection of evidence) jhf;fy; bra;ag;gl;L ,Uf;ff; TlhJ kw;Wk; jhth brhj;jpy; cs;s gpur;ridfis bjspt[g;gLj;Jtjw;F (To elucidate) jhth brhj;jpid jy Ma;t[ bra;a ntz;oaJ njitahf cs;sJ vd;gJ epiyepWj;jg;gl;l rl;l epiyahf ,Ue;J tUfpwJ. Mfnt> nkw;fhz; mwpe;jikfspypUe;J kDjhuhpd; kDit js;Sgo bra;tJ ePjpapd;ghw; cfe;jjhf ,Uf;Fk; vd;W ,e;ePjpkd;wk; Kot[ fhz;fpwJ.

7.Mfnt>

,e;j

kD

js;Sgo

bra;J cj;jutplg;gLfpwJ.

6.Reading of the written statement filed by the petitioner before the Trial Court after the petitioner was impleaded is indicate that there are no averments regarding alleged construction put up by the petitioner. The petitioner has merely defended himself before the Trial Court on the ground that time was the essence of contract hence time to be fixed for specific performance and that the petitioner was bona fide purchaser. The Trial Court has not accepted the plea of the petitioner. The petitioner has not taken any steps for setting aside the decree passed by the Trial Court on 08.01.2014 and A.S.No.42 of 2014 was also dismissed for default on

04.11.2015. Therefore, the attempt of the petitioner to stall the execution proceedings cannot be accepted. Therefore this Civil Revision Petition is liable to be dismissed. It is accordingly dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

27.03.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No dss To

1.The Sub Court, Karur.

2.The Section Officer Vernacular Section, Madurai Bench of Madras High Court, Madurai. C.SARAVANAN

,J.

dss and CMP(MD)No.3731 of 2023

27.03.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27.03.2023 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN and CMP(MD)No.3731 of 2023 K.Sundararajan ...Petitioner/Petitioner/2nd Respondent 2nd Respondent/2nd Defendant Vs. 1.A.Srinivasan ... Respondent/1st Respondent/ Petitioner/Petitioner/Plaintiff 2.P.Kalaiselvan ... 2nd Respondent/2nd Respondent/ 1st Respondent/1st Respondent/1st Defendant PRAYER: Civil Revision Petition is filed under Section 115 of CPC, to allow the Civil Revision Petition by setting aside the fair and decreetal order dated 08.12.2022 in R.E.A.No.3 of 2022 against E.A.No.93 of 2018 in E.P.No.177 of 2016 in O.S.No.195 of 2005 on the file of the learned Principal Sub Court, Karur. For Petitioner : Mr.I.Velpradeep