TaxTMI 
TaxTMI 
2022 (7) TMI 1331
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntiff instituted a suit being O.S. No. 15/2010 on the file of I Additional District Judge (PCR), Trichy for specific performance of an agreement to sell dated 17.07.2009. The said suit was filed against four defendants. The defendants were placed ex-parte. The learned Trial Court passed an ex-parte judgment and decree dated 31.10.2012. That original defendant Nos. 2 to 4 filed an application to set aside the ex-parte judgment and decree. There was a delay of 2345 days in filing the petition to set aside the ex-parte judgment and decree. Therefore, original defendant Nos. 2 to 4 filed an application requesting to condone the delay of 2345 days. The original defendant No. 1 also filed an application to set aside the ex-parte judgment and decree. There was a delay of 1522 days in filing the petition to set aside the ex-parte judgment and decree. Therefore, original defendant No. 1 also filed an application to condone the delay of 1522 days in filing the petition to set aside the ex2 parte judgment and decree. The learned Trial Court dismissed both the applications, one filed by original defendant No. 1 and another filed by original defendant Nos. 2 to 4. 2.2 Feeling aggrieved and dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent and decree in revision petition in exercise of powers under Article 227 of the Constitution of India. 3.1 It is vehemently submitted by learned Senior Advocate appearing on behalf of the appellant that the ex-parte judgment and decree passed by the learned Trial Court was an appealable order and therefore, defendant No. 1 ought to have preferred an appeal rather than filing the revision petition under Article 227 of the Constitution of India. It is submitted that therefore, when a statutory appeal was provided against the judgment and decree passed by learned Trial Court, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India and ought not to have set aside the judgment and decree in exercise of powers under Article 227 of the Constitution of India. 3.2 It is further contended that even otherwise the impugned judgment and order passed by the High Court setting aside the ex-parte judgment and decree is unsustainable. It is submitted that the High Court has recorded the findings on legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was considering the appeal against t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 4 and defendant No. 1, respectively and when the learned Trial Court by a detailed order refused to condone the delay, the same ought not to have been set aside by the High Court, that too, without considering the legality and validity of the order refusing to condone the delay. 3.6 It is further submitted by learned Senior Advocate appearing on behalf of the original plaintiff that the High Court has set aside the ex-parte judgment and decree in exercise of powers under Article 227 of the Constitution of India as if the High Court was exercising the appellate jurisdiction. 3.7 Making the above submissions, it is prayed to allow the present appeals. 4. Present appeals are vehemently opposed by Shri M. Karpagavinayagam, learned Senior Advocate, appearing on behalf of the respondents - original defendants. 4.1 It is vehemently submitted by learned Senior Advocate appearing on behalf of original defendants that the High Court has rightly set aside the ex-parte judgment and decree on the ground that the ex-parte judgment and decree for specific performance of the agreement to sell was not in consonance with the procedure enunciated under Order XII of the Code of Civil Procedure (C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e year 2012. That after a period of 1522 and 2345 days, original defendant No. 1 and defendants No. 2 to 4, respectively, filed the applications to set aside the ex-parte judgment and decree. The learned Trial Court by a detailed order refused to condone the delay of 1522 and 2345 days by specifically observing that no sufficient cause has been shown in explaining the huge delay in filing the applications to set aside the ex-parte judgment and decree. The defendant Nos. 2 to 4 alone filed the revision application before the High Court challenging the order passed by the learned Trial Court refusing to condone the delay of 2345 days. Defendant No. 1 did not file any revision application before the High Court challenging the order passed by the learned Trial Court refusing to condone the delay in filing the application to set aside the ex-parte judgment and decree. Instead, defendant No. 1 directly filed the revision application before the High Court under Article 227 of the Constitution of India challenging the ex-parte judgment and decree and without considering the legality and validity of the order/orders passed by the learned Trial Court refusing to condone the huge delay of 152....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ision application challenging the ex-parte judgment and decree. Once there was a statutory alternative remedy by way of an appeal available to the defendants, the High Court ought not to have entertained a writ petition or revision application under Article 227 of the Constitution of India. 7. At this stage, the decision of this Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Ors. Vs. Tuticorin Educational Society and Ors.; (2019) 9 SCC 538, is required to be referred to. In the said decision, it is observed and held by this Court that wherever the proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under CPC, will deter the High Court and therefore, the High Court shall not entertain the revision under Article 227 of the Constitution of India especially in a case where a specific remedy of appeal is provided under the CPC itself. While holding so, it is observed and held in paragraphs 11 to 13 as under: "11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly availa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Code of Civil Procedure itself." 7.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, the High Court ought not to have entertained the revision petition under Article 227 of the Constitution of India against the ex-parte judgment and decree passed by the learned Trial Court in view of a specific remedy of appeal as provided under the Code of Civil Procedure itself. Therefore, the High Court has committed a grave error in entertaining the revision petition under Article 227 challenging the ex-parte judgment and decree passed by the learned Trial Court and in quashing and setting aside the same in exercise of powers under Article 227 of the Constitution of India. 7.2 Even otherwise considering the impugned common judgment and order passed by the High Court, it appears that while setting aside the ex-parte judgment and decree, the High Court has commented upon the legality and validity of the judgment and decree passed by the learned Trial Court as if the High Court was exercising the appellate jurisdiction against the judgment and decree passed by the learned Trial Court. Before considering the judgment and decree on merits....