GOVINDASAMY Vs. S. RAJENDRAN AND OTHER

JUDGEMENT

(1.) According to the revision petitioner, the revision petitioner has filed asuit in OS.No.17 of 2004 on the file of the Subordinate Court, Dharapuram against the first respondent for recovery of money on the basis of promissory note dated 21.05.2002 executed by the first respondent for Rs. 1,50,000/-, in the aforesaid suit, the revision petitioner has filed an application in IA.No.66 of 2004 for attachment before Judgment. Subsequently, the revision petitioner came to know that the first respondent has filed a creditor IP.No.5 of 2009 on the file of the Subordinate Court, Pollachi. In the aforesaid IP, the second respondent is a party. The second respondent was set exparte and exparte decree was passed on 14.09.2009. According to the revision petitioner, the first respondent has obtained the exparte order in a fraudulent manner by colluding with the second respondent. Therefore, challenging the aforesaid order, the revision petitioner has filed the present Civil Revision Petition before this Court and notice has been served to the first respondent. None appeared for the first respondent before this Court.

(2.) Mr.P.Valliappan, learned counsel appeared for the second respondent would submit that the CRP itself is not maintainable before this Court. According to the second respondent, under Section 75 of Insolvency Act, 1920, the revision petitioner has to prefer an appeal before the District Court. Therefore, the Civil Revision Petition is not maintainable and the same is liable to be dismissed.

(3.) In reply to the above submissions made by the learned counsel for the second respondent, the learned counsel for the revision petitioner would submit that in the light of the decision of the Hon'ble Division Bench of this Court in the case of K.Balakrishnan v. S.Dhanasekar, reported 2018 (1) LW 599 , the order passed by the court below is not in consonance with the section 2 (9) of the Civil Procedure Code. Therefore, the trial court merely passed the exparte order without adjudicating the issues involved in the petition. Therefore, the Civil Revision Petition under Article 227 of the Constitution of India is maintainable before this Court. There is no reason has been stated in the affidavit for the laches in filing the Civil Revision Petition. Further, when there is a provision for filing an appeal against the order, there shall be an opportunity to the revision petitioner to file an appropriate application before the court below to satisfy the sufficient cause for condoning the delay in filing the appeal in consonance with the decision of the Hon'ble Division Bench of this Court in the case of K.Balakrishnan v. S.Dhanasekar, reported 2018 (1) LW 599 . Therefore, at this stage, this Court is not inclined to entertain the Civil Revision Petition, when there is efficacious alternative remedy is available to the petitioner under the provision of the Act. Hence, Revision Petition is not maintainable before this Court. At this stage, Civil Revision Petition cannot be entertained and the same is liable to be dismissed.