E A CHANDRASEKARAN Vs. VENKATACHALAM

JUDGEMENT

(1.) Both the above Civil Revision Petitions have been filed against the fair and decretal order dated 30.4.2003 respectively made in I.A.Nos.236 and 237 of 2003 in O.S.No.1370 of 2002 by the Court of Subordinate Judge, Namakkal, thereby allowing the Interlocutory Applications filed by the respondents herein under Order IX, Rule 13 r/w Order XVII, Rule 2 & Section 151 C.P.C. praying to set aside the decree passed by the said Court.

(2.) Tracing the history of the case, what comes to be known is that the petitioner herein filed the suit in O.S.No.733 of 1996 before this Court, which was later transferred to the Court of Subordinate Judge, Sankari and re-numbered as O.S.No.762 of 1997 and on point of jurisdiction it was again transferred to the Court of Subordinate Judge, Namakkal and re-numbered as O.S.No.1370 of 2002 praying to direct the defendants to execute and register a sale deed in favour of the plaintiff or his nominee or nominees, of the schedule property after receiving the balance sale consideration of Rs.1,75,000/-, to hand over vacant possession of the suit property, to pay mesne profits from the date of filing of the suit till delivery of the suit property and alternatively direct the defendants to pay the plaintiff a sum of Rs.11,00,000/- with interest at 12% per annum from the date of suit till realisation and for that purpose create a charge over the suit properties in favour of the plaintiff, for a permanent injunction restraining the defendants 2 and 3 and the 1st defendant, power of attorney agent from in any manner creating any kind of documents and restraining them from in any manner alienating and encumbering the suit property till final disposal of the suit and for costs; that the suit was contested by the respondents herein; that the suit was decreed in favour of the petitioner herein; that the respondents 2 and 3 herein have filed I.A.No.287 of 2003 and the first respondent herein has filed I.A.No.286 of 2003 under Order IX, Rule 13 r/w Order XVII Rule 2 and Section 151 of C.P.C. praying to set aside the decree on the ground that the defendants were not examined as witnesses to put forth their substantial rights and that no opportunity was given to them to cross-examine P.W.1; that though the suit was posted for cross-examination of P.W.1 on 5.12.2002 they were not able to cross-examine P.W.1, because of P.W.1 was not present on that day; that the defendants were not also given opportunity to enter defence.

(3.) The learned Subordinate Judge, after considering the reasons assigned on the part of the defendants and the defence taken on the part of the petitioner herein, also following the decision of the Apex Court cited on the part of the defendants would ultimately allow the applications, thereby setting aside the judgment and decree dated 5.12.2002 made in O.S.No.1370 of 2002. It is only testifying the validity of the said fair and decretal orders, the petitioner has come forward to file the above Civil Revision Petitions on grounds that the suit itself was decreed on merits, the provisions under Order IX Rule 13 C.P.C. would not be applicable; that the impugned order was passed without jurisdiction since the decree was passed under Order XVII Rule 3 C.P.C. and was based on a detailed judgment; that the impugned order has been passed without noting that the decisions cited therein have no relevance to the facts of the case and therefore, the impugned order is not sustainable in law and ought to be set aside.