PERIYAKARUPA THEVAR Vs. VELLAI ALIAS OCHA THEVAR

JUDGEMENT

(1.) THESE civil revision petitions have been directed to be heard by a Division Bench by order of the learned Chief Justice in view of the importance of the question that is raised and, because, the decision of a single Judge of this court in Kodammal v. Duraiswami Naicker, is challenged as not having been correctly decided.

(2.) THE undisputed facts are as follows. A dispute in respect of possession of certain lands gave rise to a proceeding under Section 145 Crl. P. C. before the Revenue divisional Officer, Usilampatti who is the Executive I Class Magistrate, Usilampatti. Before, the learned Magistrate one Periya Karuppa Thevar and 9 others were the B party and one Vellia alias Ocha Thevar constituted the A party. The learned magistrate, being apparently of the opinion that the question which party was in possession on the crucial date, namely, the date of the preliminary order could not be satisfactorily determined by him, referred the matter to the District Munsif, tirumangalam. This procedure was adopted under Section 146 Crl. P. C. When the proceedings came on for hearing before the learned District Munsif on 18-9-1959 the A party appeared through his counsel, but the B party were absent and remained ex parte. A witness was examined on the side of the A party who swore to the possession of that party on the date of the preliminary order and there was no evidence contra. On this evidence an ex parte order was passed by the learned district Munsif holding adversely against the B party by declaring the possession of the A party.

(3.) THE B party therefore filed an interlocutory application, I. No. 1144 of 1959 before the District Munsif praying to set aside the ex parte order, invoking the aid of Section 151 and Order IX, Rule 13, C. P. C. During the pendency of this application Vellai alias Ocha Thevar, the A party, died on 27-10-1959. The B party thereupon filed I. A. No. 1416 of 1959 to bring on record the widow , and the daughter of the deceased A party as legal representatives in order to enable them to prosecute further the application to set aside the ex parte order. The learned district Munsif held that the provisions of the Civil Procedure Code were not applicable to the reference proceedings under Section 146, Crl. P. C. and dismissed both the applications. It is against these orders that the present civil revision petitions have been preferred.