1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION(NPD)(MD) No.1375 of 2011 1.E.S.Mohammed Yusufkhan 2.A.Sidhik Hamsha .. Petitioners/Defendants Vs. D.Raju .. Respondent/Plaintiff Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal order dated 26.10.2010 in Interlocutory Application No.39 of 2006 in unnumbered Appeal Suit No.- of 2006 by the Principal District Court, Thanjavur. For Petitioners : Mr.G.Karnan For Respondent : Mr.P.Sesubalan Raja for M/s.R.Mahadevan Associates ORDER This Civil Revision Petition has been directed against the order dated 26.12.2010 in Interlocutory Application No.39 of 2006 in unnumbered Appeal Suit No.- of 2006 by the Principal District Court, Thanjavur. 2. The respondent herein as plaintiff has instituted Original Suit No.26 of 2000 on the file of the Sub Court, Thanjavur praying to pass a decree of specific performance, wherein the present revision petitioners have been shown as defendants. In Original Suit No.26 of 2000, an executable decree has been passed and against the Judgment and decree passed by the trial Court Appeal Suit No.- of 2006 has been preferred with a delay of 1089 days and in order to condone the same, the present petition has been filed in Interlocutory Application No.39 of 2006 under Section 5 of the Limitation Act, 1963. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been filed. 3. The learned counsel appearing for the revision petitioners has contended that as against the Judgment and decree passed by the trial Court, the revision petitioners as appellants have erroneously filed an appeal on the file of the High Court thinking that the High Court is having pecuniary jurisdiction and subsequently the appeal filed by the revision petitioners has been returned stating that High Court is not having jurisdiction to entertain the appeal and under the said circumstances the delay mentioned in the petition has occurred, but the Court below without considering the nature of proceedings erroneously taken on the side of the revision petitioners, has simply dismissed the petition and therefore the dismissal order passed by the Court below is liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The learned counsel appearing for the respondent has contended that the trial Court has executed a sale deed on 03.11.2006 and subsequently the respondent has sold the suit property in favour of third party and under the said circumstances the present petition is not legally maintainable and the Court below has rightly dismissed the same and therefore the order passed by the Court below need not be set aside. 5. As stated earlier, Original Suit No.26 of 2000 has been filed for the relief of specific performance, wherein an executable decree has been passed. On the side of the revision petitioners, certain documents have been filed, which would go to show that the revision petitioners have erroneously filed an appeal on the file of the High Court and the High Court has returned the same. 6. Considering the fact that the revision petitioners have taken wrong proceedings before the High Court, the delay mentioned in the petition can be accepted subject to the following conditions. 7. The only defence taken on the side of the respondent is that he already sold the suit property in favour of third party. Simply because the respondent has already sold the suit property in favour of third party, the right of the petitioners cannot be rejected. The Court below has simply dismissed the petition on the ground that the respondent has already sold the suit property to a third party. The reason assigned by the Court below for dismissing the present petition is not proper and therefore the order passed by the Court below is liable to be set aside and the petition filed in Interlocutory Application No.39 of 2006 is liable to be allowed subject to the following conditions. 8. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.39 of 2006 in unnumbered Appeal Suit No.- of 2006 by the Principal District Court, Thanjavur is set aside and the petition filed in Interlocutory Application No.39 of 2006 is allowed. However, the revision petitioners are directed to pay Rs.2,000/- to the respondent by way of cost to the respondent on or before 12.12.2011 and to that effect a memo has to be filed before the Principal District Court, Thanjavur. The Principal District Court, Thanjavur is directed to proceed further only after receipt of memo. Sd/- Assistant Registrar (A.S) /True Copy/ Sub Assistant Registrar (C.S) To The Principal District Judge, Thanjavur. + 1 cc to Mr.P.Sesubalanraja, Advocate, SR No.39515 C.R.P(NPD)(MD)No.1375 of 2011 14.11.2011 smn RJ/21.11.11 2p/3c https://hcservices.ecourts.gov.in/hcservices/