KALIMUTHU Vs. ASAR KALAIRAJA

JUDGEMENT

(1.) This Civil Revision Petition is filed against an order made in E.A. No. 14 of 2010 in E.P. No. 62 of 2008 in O.S. No. 90 of 1982 on the file of the Sub Court, Nagapattinam, wherein and whereby the Court below has rejected the said application filed by the petitioner seeking permission for filing additional counter in the execution petition. Though notice was served on the respondent, he has not chosen to appear before this Court either in person or through counsel. However, his name is printed in the cause list. Heard the learned counsel for the petitioner.

(2.) The petitioner is aggrieved against the order passed by the Court below in rejecting his application seeking permission to file additional counter in the execution petition. The petitioner is the 15th respondent in the execution petition. The petitioner wanted to file an additional counter affidavit in order to bring out certain facts about the sale of the properties mentioned in the execution petition to third parties by the plaintiff. According to the petitioner, the said facts are crucial for deciding the main execution petition. The Court below has rejected the said application by observing that the petitioner being the 15th respondent, had in fact not filed any counter and therefore in the absence of any counter filed by him earlier, there is no question of permitting him to file additional counter affidavit. It is also further observed by the Court below that when the matter was posted for arguments, the present application filed is not maintainable without getting the matter reopened. The Court below has also gone into the merits of the contentions raised in the additional counter and found that such contentions cannot be permitted to be raised by the petitioner.

(3.) On the other hand, the learned counsel appearing for the petitioner submitted that the petitioner had filed counter before the Court below during the month of August 2007 itself and also placed copy of the same in the typed set of papers. Therefore, the learned counsel submitted that the finding rendered by the Court below in this aspect is factually incorrect.