V. Karuppannan vs Idol of Sri Kalyana

G. Rajasuria, J.—This Civil Revision Petition has been filed to get set aside the order dated 03.07.2012 in E.A. No. 29 of 2011 in E.P. No. 81 of 2008 in O.S. No. 36 of 1993, on the file of Additional Sub Court, Karur. The warp and woof of the relevant facts absolutely necessary for the disposal of this Civil Revision Petition, would run thus:

2 (a). The learned Counsel for the revision petitioner would detail and delineate the following facts:

O.S. No. 36 of 1993 was filed by the respondent/Idol Sri Kalyana Pasupatheeswaraswamy, seeking for declaration and permanent injunction. The first defendant remained ex parte. Ultimately, the ex parte decree was passed. Subsequently, the decree holder filed E.P. No. 81 of 2008 wherein the petitioner herein was set ex parte initially. Thereafter, E.A. No. 21 of 2010 was filed under Order XXI Rule 106 and Section 151 of the Code of Civil Procedure, for getting set aside the ex parte order passed in E.P. No. 81 of 2008, which was allowed, whereupon the revision petitioner - Karuppannan was permitted to participate in the E.P. However, the same Karuppannan filed E.A. on the ground that he filed the application under Order IX Rule 13 of the CPC for getting the order set aside. However, the lower Court dismissed the said E.A., by observing that pending disposal of the alleged application filed under Order IX Rule 13 of the Code of Civil Procedure, the order of stay could not be granted.

The learned Counsel for the revision petitioner would submit that the said application filed by the revision petitioner under Order IX Rule 13 of the Code of Civil Procedure, was not numbered, because of some administrative difficulties. The Court concerned finds it difficult to number it, because the O.S. bundle after disposal, was sent to the Office of the Principal District Judge, Trichy.

I am shocked to hear such a representation from the learned Counsel for the revision petitioner. If what is represented before me, is true, that would show the deplorable state of affairs prevailing in the lower Court. It is the duty of the lower Court to send a Special Messenger to retrieve or get back the bundle in O.S., and number the application filed under Order IX Rule 13 of the Code of Civil Procedure, if it is otherwise in order, instead of keeping the said I.A., idly which would lead to travesty of justice.

Hence, I would mandate that the lower Court shall do well to see that the application under Order IX Rule 13 of the Code of Civil Procedure, is numbered immediately on receipt of a copy of this order, whereupon it is for the revision petitioner herein to file necessary additional application for stay and it is for the lower Court to consider it on merits and in accordance with law, untrammelled or uninfluenced by any of the observations made by this Court or by the Executing Court in dismissing E.A. No. 29 of 2011. In the result, the Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.