Alagumani v. Kalimuthu (Died)

ORDER This Civil Revision Petition has been filed by the Tahsildar, Bodinayakanur. The petitioner is aggrieved by the impugned order dated 26.04.2023 passed by the learned District Munsif, Bodinayakanur, Theni District, in E.A.No.4 of 2023 in E.A.No.2 of 2022 in E.P.No.295 of 1997 in O.S.No.493 of 1989.

¶2By the impugned order dated 26.04.2023, the Execution Court (District Munsif Court, Bodinayakanur, Theni District), has dismissed E.A.No.4 of 2023 filed by the petitioner for restoration of E.A.No.2 of 2022, which was dismissed for default on 21.12.2022.

¶3E.A.No.2 of 2022 was filed by the erstwhile Tahsildar, Bodinayakanur, in the official capacity. E.A.No.2 of 2022 was dismissed for default/non-appearance, after evidences were examined on behalf of the Government. The Government is a stranger to the dispute in O.S.No.493 of 1989.

¶4The said O.S.No.493 of 1989 was filed by one Kalimuthu, Muniyandi and Arumugam, who have died, against the third respondent, Rajjaiya, Chinnaya and Subramanian, who have also died, for bare injunction. In the plaint, the deceased plaintiffs have stated that the land in question was a poramboke land. The said suit was dismissed on 30.08.1990. Aggrieved by the same, the deceased plaintiffs filed A.S.No.61 of 1991, which was allowed on 16.09.1994. Thus, there was a decree against the defendants in O.S.No.493 of 1989.

¶5The Revenue Department, represented by the Tahsildar had initiated parallel proceedings in O.S.No.185 of 2005 before the Distict Munsif-cum-Judicial Magistrate Court for declaration that the decree passed in A.S.No.61 of 1991 on

16.09.1994 was not binding on it. The suit was dismissed on 27.09.2007. A further appeal was filed before the Subordinate Court, Periyakulam, in A.S.No.69 of 2009, which was also dismissed on 28.01.2010. The further appeal is pending before this Court in C.M.P.(MD)No.5870 of 2023 in S.A.(MD)SR.No.32423 of 2023 with the delay of approximately 13 years.

¶6Meanwhile, the original plaintiffs in O.S.No.493 of 1989 have died. In the light of the judgment and decree dated 16.09.1994, passed in A.S.No.61 of 1991, the sisters of the original plaintiffs, who are the first and second respondents herein, filed E.P.No.195 of 1997 and delivery was ordered. At the time when the first and second respondents proceeded to take delivery of the property, it was resisted by the Revenue Department through the Tahsildar.

¶7Under these circumstances, the petitioner's predecessors filed E.A.No.2 of 2022 before the District Munsif Court, Bodinayakanur, under Section 47 of the Code of Civil Procedure, 1908 objecting to delivery being taken. After evidences was partially recorded, E.A.No.2 of 2022 filed under Section 47 of the Code of Civil Procedure, 1908, was dismissed on 21.12.2022. The petitioner, who is competent and successor to the previous Tahsildar, filed E.A.No.4 of 2023 with the delay of 55 days in filing the application for restoration of E.A.No.2 of 2022.

¶8The Court has dismissed the said E.A.No.4 of 2023 filed for restoration of E.A.No.2 of 2022, with the following observations:- ''21) NkYk; 08.03.2023k; Njjpapy; mg;Nghija Nghbehaf;fD}H tl;lhr;rpaH jpU.[yhy; mtHfs; ,e;j tof;fpy; ePjpkd;w rhl;rpahf ,e;j ePjpkd;wj;jpy; tprhuiz nra;ag;gl;Ls;s epiyapy; mjd; gpd;dUk; mg;Nghija tl;lhr;rpaH mtHfSf;F ,.V.2/2022 kD js;Sgb nra;ag;gl;l tpguk; Neubahfj;njhpahky; ,Ue;Js;sJ vd;W jw;Nghija tl;lhr;rpaH jhf;fy; nra;Js;s mgpltpl;by; $wpAs;s fhuzq;fSk; Vw;Gilajhf ,y;iy vd;Nw ,e;j ePjpkd;wk; fUJfpd;wJ. ........ 23) ,.V.2/2022 kDTk; ,e;j kDTk; tl;lhr;rpaH> Nghbehaf;fD}H mtHfs; kDjhuuhf ,Ue;J muR my;yJ khtl;l Ml;rpaH MfpNahH jug;gpduhf fhl;lhky; jdpg;gl;l Kiwapy; tl;lhl;rpauhy; jhf;fy; nra;ag;gl;Ls;sJ vd;gJ njhpatUfpwJ. ,JFwpj;J chpikapay; eilKiwr;rl;lk; gphpT 79 kw;Wk; fl;lis 27 tpjp 1 Mfpatw;iw ghprPypid nra;jjpy; murhy; my;yJ muRf;F vjpuhf xU tof;F vt;tifapy; jhf;fy; nra;ag;glNtz;Lk; vd;gJ gw;wp $wg;gl;Ls;sJ vd;gJ njhpatUfpwJ. 24) NkYk; ,J Fwpj;J Muthavalli Vs Thasildar and another CRP (PD) No.901/2017 tof;fpd; cj;jutpy; khz;GkpF caHePjpkd;wk; The District Collector Srikakulam and others Vs Bagathi Krishna Roa and another reported in 2010

(5) LW 17 - vd;w tof;fpy; gphpT 79 kw;Wk; fl;lis 27 kw;Wk; tpjp 1 chpikapay; eilKiwr; rl;lk; Fwpj;J gpd;tUkhW $wpAs;s fUj;Jiu ftdj;jpy; nfhs;sj;jf;fhf cs;sJ vd;w ,e;j ePjpkd;wk; fUJfpd;wJ. Nkw;gb fUj;Jiu gpd;tUkhW:- ''5. Section 79 of the Code of Civil Procedure (hereinafter `CPC') specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the plaintiff or defendant, would be the Union of India or Central Government or the State or State Government. Proviso to Rule 9 of Order 1 provides that non-joinder of necessary party is fatal.

¶6Rule 1 of Order XXVII CPC deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint.'' Nkw;fz;l rl;lg;gphptpd;gb tl;lhl;rpaH vd;gtH muRf;fhf jdpg;gl;l Kiwapy; muir jug;gpduhf fhl;lhky; ve;j xU tof;fpidAk; jhf;fy; nra;a ,ayhJ vd;gJ njhpatUfpwJ. NkYk; ,t;tof;fpy; tl;lhr;rpaH jdpg;gl;l Kiwapy; kD jhf;fy; nra;a murhy; ve;j xU rpwg;ghd cj;juTk; gpwg;gpf;fg;gl;ljhf kDjhuH jug;gpy; ve;j xU MtzKk; jhf;fy; nra;ag;gltpy;iy vd;gJ njhpatUfpwJ. 25) .......... 26) Nkw;fz;l ghprPyidfspd; mbg;gilapy; ,.V.2/2022 kD js;Sgb nra;ag;gl;l tpguk; ,e;j ePjpkd;wj;jhYk; muR tof;fwpQH mtHfshYk; ,e;j kDjhuH mYtyfj;jpw;F mDg;gg;gl;l fbjq;fs; NtW Nfhg;GfSld; fye;Jtpl;ljhf $wp mjd; fhuzkhf ,k;kDit jhf;fy; nra;a 55 ehl;fs; fhyjhkjk; Vw;gl;Ltpl;ljhf kDjhuH $Wk; fhuzk; ve;j tifapYk; Vw;Gilajhf ,y;iy vd;Nw ,e;j ePjpkd;wk; fUJfpd;wJ. 27) NkYk; ,e;j kD kw;Wk; ,.V.2/2022 kD Mfpait muR nrhj;J rk;ge;jkhf jhf;fy; nra;ag;gLtjhf $wg;gl;Ls;s epiyapy; muirNah murpd; gpujpepjpahd khtl;l Ml;rpaiuNah jug;gpduhf NrHf;fhky; Nghb tl;lhrpaH mtHfs; jdpg;gl;l Kiwapy; vt;tpj rl;l mq;fPfhuKk; ,y;yhky; kDf;fis jhf;fy; nra;J RkhH 25 tUlq;fSf;Fk; Nkyhf epYitapypUe;J tUk; mry; epiwNtw;wy; kDthd ,.gp.295/1997 kDit jPHT fhz ,ayhj tifapy; njhlHe;J fhyjhkjg;gLj;Jk; tpjkhf nray;gl;L tUfpwhHfs; vd;Nw ,e;j ePjpkd;wk; fUJfpd;wJ.''

¶8The learned Additional Advocate General for the petitioner submits that the proceedings under Section 47 of the Code of Civil Procedure, 1908, is not circumscribed the exceptions in Section 5 of the Limitation Act, 1963. He submits that the suit that was filed by the deceased respondents was for a bare injunction and for a recovery of possession. It is further submitted that even as per the plaint, the suit land is a poramboke land, situated at Uppukottai Village, S.No.344/1, measuring to an extent of 45 cents.

¶9It is submitted that two parallel proceedings are pending, one at the behest of the petitioner under Section 47 of C.P.C. to raise an objection for taking delivery of the Government poramboke land and other parallel proceedings initiated by the respondents 1 and 2/decree holders was seeking to execute the decree passed by the Trial Court in O.S.No.493 of 1989.

¶10It is submitted that the case was represented by the erstwhile Tahsildar, who was later transferred. It is further submitted that recording of evidence in Section 47 of C.P.C. proceedings commenced on 19.10.2022 and thereafter, the case adjourned from time to time for cross-examination of second witness on behalf of the petitioner.

¶11It is submitted that during the interregnum, the Tahsildar, who was representing the petitioner, was transferred and therefore, on 21.12.2022 the obstruction petition filed by the petitioner under Section 47 of C.P.C. was rejected and therefore, the applications were filed for restoring Section 47 of C.P.C. petition.

¶13The learned counsel for the respondents 1 and 2, on the other hand, has placed reliance on the decisions of this Court rendered in M.Ponnupandian vs. Selvabakiyam and others reported in 2003 (4) CTC 225. A reference is made to Paragraph No.11, which reads as under:- ''11. Therefore, it is well settled now that Section 5 of the Limitation Act, 1963 is not applicable to the petition filed for setting aside the orders passed ex parte under Rule 106 of Order XXI C.P.C. and the provision contained in Sub-rule (4) of Rule 105 (Madras Amendment) is no longer in force. However, it has been held by a learned single Judge of this Court in A.I.R. 1995 Madras 242 (R.Parasuraman vs. Jayalakshmi Ammal and others), that the provisions under the Limitation Act, 1908 are applicable to the proceedings by virtue of the Order XXI Rule 105(4) C.P.C. and rejection of application for condonation of delay as Limitation Act 1963 is not applicable to execution proceedings is not proper. It appears that the judgment of the Division Bench of this Court, 1989-1 Law Weekly, 178 (cited above) was not brought to the notice of the learned Single Judge in rendering the decision as such.''

¶14A reference is also made to another decision of the Hon'ble Supreme Court in Damodaran Pillai and others vs. South Indian Bank Ltd., [Appeal (Civil) No. 1079 of 2004, dated 08.09.2005], wherein the Hon'ble Supreme Court has held as under:- ''An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the mater, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.''

¶15I have considered the arguments advanced by the learned Additional Advocate General for the petitioner and the learned counsel for the respondents 1 and 2.

¶16The point that arises for consideration is whether Section 47 Petition which was dismissed on 21.12.2022 can be restored even otherwise by filing application beyond 30 days.

¶17As per Order XXI Rule 106(3) of the Code of Civil Procedure, 1908, the restoration application or application for setting aside the exparte decree has to be filed within a period of 30 days from the date when the applicant had knowledge of the order. In this case, admittedly, E.A.No.2 of 2022 is the application filed under Section 47 of the Code of Civil Procedure, 1908, which has to read in conjunction with Rules 97 to 106 to Order XXI of C.P.C.

¶18As per Rule 105 to Order XXI of C.P.C., whether on the day fixed or any other day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

¶19As per Sub-Rule (1) of Rule 106 to Order XXI of C.P.C., the applicant has to file an application for restoration of the application or setting aside the ex parte order and the Court is satisfied that there were sufficient causes for non-appearance when the application was called on for hearing, the Court shall set aside the exparte order on such terms as to costs and otherwise as it thinks fit.

¶20For the purpose of disposal of this case, Rules 105 and 106 to Order XXI of C.P.C. are reproduced below:- Order XXI Rule 105 of CPC Order XXI Rule 106 of C.P.C.

¶105Hearing of Application.

(1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.

¶106Setting aside orders passed ex parte, etc.

(1) The applicant, against whom an order is made under sub-rule (2) rule 105 or the opposite party against whom an order is passed ex parte under sub-rule (3) of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside the order, and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order or such terms as to costs, or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty 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 applicant had knowledge of the order.

¶21The obstruction filed by the petitioner is not limited by the exclusion contained in Section 5 of the Limitation Act, 1963, as per which, any appeal or any application, other than an application under any of the provisions of Order XXI of C.P.C., 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

¶22The restrictions contained in Section 5 of the Limitation Act, 1963 cannot apply to a third party to the proceedings, as Order XXI of C.P.C. primarily deals with execution of a decree between the parties to the suit and in the event of sale of the property in execution of the decree. Whereas, in this case, the Court is not concerned with any money decree or execution of the money decree, where property was sold.

¶23The suit was filed by the deceased respondents only for permanent injunction and recovery of possession from the defendants in the said suit. The petitioner is the third party to the proceedings. There is no merit in the impugned order rejecting the application for condoning the delay of 55 days in setting aside the order dismissing the obstruction petition filed by the petitioner. Consequently, the impugned order dated 26.04.2023, passed in E.A.No.4 of 2023 in E.A.No.2 of 2022 in E.P.No.295 of 1997 in O.S.No.493 of 1989 is set aside and E.A.Nos.2 of 2022 and 4 of 2023 stand restored and accordingly, this Civil Revision Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed. NCC : Yes/No

26.06.2023 Index : Yes/No Internet : Yes/No smn2 To The District Munsif, Bodinayakanur, Theni District.

C.SARAVANAN, J. smn2

26.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.06.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD)No.6307 of 2023 Alagumani, The Tahsildar, Bodinayakanur. .. Petitioner Versus Kalimuthu (Died), S/o.Udacie Muniyandi (Died), S/o.Udacie Arumugam (Died), S/o.Udacie 1.Veerammal, D/o.Udacie 2.Irulayi Ammal, D/o.Udacie 3.Paraman, S/o.Ponnusamy Rajjaiya (Died), S/o.Ponnusamy Chinnaya (Died), S/o.Ponnusamy Subramanian (Died), S/o.Ponnusamy 4.Ponnarasan, S/o.Late. Chinnaya 5.Palraj, S/o.Late.Chinnaya 6.Ponmudi, S/o.Late.Chinnaya 7.Murugeswari, D/o.Late.Chinnaya 8.Parameswari, D/o.Late.Chinnaya 9.Rajendran, S/o.Late.Subramanian Ayyapparaja (Died), S/o.Late.Subramanian 10.Sundari, D/o.Late.Subramanian 11.Dhanabakiyam, D/o.Late.Subramanian 12.Pandiarajan, S/o.Late.Rajayya Rajasekaran (Died), S/o.Late.Rajayya .. Respondents Prayer :- Petition filed under Section 115 of C.P.C., to call for the records relating to the dismissal order passed in E.A.No.4 of 2023 in E.A.No.2 of 2022 in E.P.No.295 of 1997 in O.S.No.493 of 1989, dated 26.04.2023, on the file of the District Munsif Court, Bodinayakanur, Theni District, and set aside the same by allowing this Civil Revision Petition. For Petitioner : Mr.Veera.Kathiravan Additional Advocate General – III Assisted by Mr.S.Kameswaran Government Advocate For R1 and R2 : Mr.R.Suriyanarayanan For R4, R7, R8 and R12 : No Appearance