KRISHNAMOORTHY Vs. PARASURAMAN

JUDGEMENT

(1.) THE second plaintiff in the suit is the revision petitioner, which is filed under Section 115 of Code of Civil Procedure. The revision arises from the order passed by the learned Trial Judge in dismissing the application filed by the petitioner under Section 5 of the limitation Act for condoning the delay of 95 days in filing a petition to restore the suit dismissed on 17. 08. 2000.

(2.) THE case of the plaintiff is that the first plaintiff being a mortgager in a mortgage deed executed by him in favour of the first defendant Parasuraman, has filed the suit for redemption in the District Munsif Court, Tirukovilur against the defendants 1 to 6 in O. S. No. 430 of 1982 and after the trial, the trial court has passed a preliminary decree on 11. 04. 1984. The appeal filed against the said preliminary decree by the second and third defendants in A. S. No. 144 of 1984, was also dismissed on 04. 08. 1986. It was there after, the first plaintiff filed I. A. No. 668 of 1988 in O. S. No. 430 of 1982 for passing final decree. In the mean time, since the first plaintiff parasuraman died, an application to condone delay, as well as to set aside abatement was filed by the second plaintiff along with the petition to implead him as a legal heir and ultimately, the petitions were allowed. As against the said orders, the defendants 1 to 3 have approached this Court by filing C. R. P. Nos. 647 to 649 of 1993 and this Court by an order dated 13. 11. 2000 has dismissed the revisions. In the mean time the suit in O. S. No. 430 of 1982 on the file of the District Munsif Court, Thirukovilur was transferred to the Principal District Munsif Court, Ulundurpet and was renumbered as O. S. No. 2 of 1995.

(3.) HOWEVER, the final decree petition came to be dismissed by the Trial Court on 17. 08. 2000 on the basis that the petitioner was unable to produce the order from the High Court, after the High Court dismissed the C. R. P. as stated above on 13. 11. 2000. The petitioner has met his counsel at Madras and it was only after receiving the same on 18. 12. 2000 from the counsel at Madras, the petitioner came to know about the dismissal of the revision. The petition to restore the final decree application filed by the petitioner in I. A. No. 79 of 2001 in O. S. No. 2 of 1995, which should have been filed within 30 days, was filed after the delay of 95 days and it was to condone the said delay of 95 days, the application was filed under Section 5 of the Limitation Act and the Trial Court has dismissed the application against which the present revision is filed before this Court.