THANKAMMAL Vs. SUSEELA PONMALAR

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure challenging the order of the learned District Judge, Kanyakumari at Nagercoil (Appellate Judge) dated 26.03.2010 made in I.A. No. 16 of 2009 in C.M.A.SR. No. 178 of 2009. The revision petitioner Thangammal is the mother of the 4th respondent Bennet. The first respondent Suseela Ponmalar is the wife of the 4th respondent. The second and third respondents, namely minor Pemila Berin and minor Benasir Pemila are the daughters of the first and fourth respondents. It is an admitted fact that the first respondent Suseela Ponmalar and her husband (4th respondent) are not living together and the respondents 1 to 3 are living separately. As the fourth respondent did not make any provision for the maintenance of his wife and children (the respondents 1 to 3) they filed a suit in (O.S. No. 223 of 2002 on the file of the learned Principal Subordinate Judge, Nagercoil for recovery of a sum of Rs. 1,08,000/ - as past maintenance and future maintenance at the rate of Rs. 3,000/ - per month and also for creating a charge over the suit properties for the payment of maintenance amount. After trial, the suit was decreed as prayed for by a judgment and decree dated 20.01.2005. As the decree amount was not paid, the decree holders, namely respondents 1 to 3 herein, levied execution by filing E.P. No. 48 of 2005 on the file of the trial Court, namely the Principal Sub -ordinate Judge, Padmanabhapuram for the sale of the charged properties to release the decree amount.

(2.) AFTER the filing of the execution petition, the revision petitioner herein filed E.A. No. 523 of 2005 in the above said execution petition praying for an order to raise the attachment over the properties described in the schedule to the petition on the strength of the affidavit filed in support of the Execution Application, claiming that those properties belonged to the revision petitioner and they were wrongly attached by the trial Court in I.A. No. 99 of 2001 in O.S. No. 223 of 2002. The said execution application was resisted by the respondents 1 to 3 herein contending that the revision petitioner, without any right or title over the property, had simply filed the said application only in order to prevent the decree holders (respondents 1 to 3) herein from realizing the fruits of the decree and that, in fact the judgment debtor (the fourth respondent) had set up his mother (the revision petitioner) to file such an application with a view to further harass respondents 1 to 3 who were made to suffer because of his failure to maintain them.

(3.) THEREAFTER , the revision petitioner chose to file an appeal in C.M.A.SR. No. 178 of 2009 on the file of the learned District Judge, Kanyakumari at Nagercoil along with an application I.A. No. 16 of 2009 to condone the delay in filing the Civil Miscellaneous Appeal against the order dated 13.02.2007 by which E.A. No. 523 of 2005 in E.P. No. 48 of 2005 in O.S. No. 223 of 2002 came to be dismissed. However, the revision petitioner computed the delay at 341 days and prayed for an order condoning the said delay of 341 days in filing the Civil Miscellaneous Appeal. The only reason assigned therein was that immediately after the dismissal of the execution application, certified copies were obtained and CRP (NPD)(MD) No. 700 of 2008 was filed before the Madurai bench of the Madras High Court; that the same was disposed of on 12.11.2008 granting liberty to the revision petitioner to file an appeal with an application to condone delay and that thereafter, she applied for and got copy of the order of the High Court and then filed the appeal and that in the said process a delay of 341 days had been caused.