Madras High Court
Murugeshwari vs M.Kaviyarasu on 19 November, 2021
C.R.P.(NPD) (MD) No.1252 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.1252 of 2021
Murugeshwari .. Petitioner/Respondent/
Plaintiff
-vs-
M.Kaviyarasu .. Respondent/Petitioner/
3rd Defendant
Prayer :- Petition filed under Section 115 of Code of Civil Procedure
against the order and decree passed dated 29.11.2019 made in I.A.No.
1007 of 2018 in O.S.No.153 of 2017 on the file of the Principal Sub
Court, Dindigul, Dindigul District.
For Petitioner : Mr.G.Gomathi Sankar
For Respondent : No appearance
******
ORDER
The plaintiff in the suit in O.S.No.153 of 2017 on the file of the
Principal Sub Court, Dindigul has preferred this revision challenging the
order dated 29.11.2019 in allowing I.A.No.1007 of 2018 filed by the
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C.R.P.(NPD) (MD) No.1252 of 2021
petitioner/3rd defendant to condone the delay of 428 days in setting aside
the ex-parte decree.
2.For the sake of convenience, the parties shall be referred to as
per their rank in the suit.
3.The facts in brief are as follows:-
3.1.The petitioner herein had filed the suit for a specific
performance of an agreement of sale entered into between the plaintiff
and one Late.Manohar, husband of the 1st defendant and father of
defendants 2 and 3 on 14.11.2016. The plaintiff had entered into this
agreement for a total sum of Rs.2,10,000/- of which a sum of Rs.
2,00,000/- was paid as advance on the date of execution of the agreement
of sale and the balance sum was repayable within a period of one year.
The ex-parte decree came to be passed on 28.08.2017 and thereafter, the
decree holder, the petitioner herein had filed execution proceedings in
E.P.No.410 of 2017 to execute the sale in favour of the plaintiff. This
execution petition was ordered. The sale deed was executed by the court
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C.R.P.(NPD) (MD) No.1252 of 2021
and the possession was also subsequently handed over. It is thereafter,
the respondent had come forward with the application in I.A.No.1007 of
2018 to condone the delay of 428 days in filing the petition to set aside
the ex-parte decree.
4.In the affidavit filed in support of the said application, the
respondent would contend that he did not have any knowledge about the
filing of the suit or the fact that the sale deed had been executed in favour
of the plaintiff. He would further submit that from the year 2016, he has
been staying at Chennai and therefore, the order was passed without
notice to him.
5.The petitioner/plaintiff had contested the said application and
stated that the respondent/3rd defendant was very much aware about the
proceedings and the application is nothing but a collusive one. She
would further submit that when the defendants had received summons in
the suit, they had all appeared in person before the Court and thereafter,
had failed to file their written statement. After having knowledge about
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C.R.P.(NPD) (MD) No.1252 of 2021
the same and having stayed away, they are not entitled to have the delay
condoned especially when, the Sale Deed had been executed in favour of
the plaintiff. The learned Principal Sub Judge, Dindigul allowed the said
application on costs. Challenging the same, the petitioner/plaintiff is
before this Court.
6.The respondent, though served, has not entered appearance.
7.Heard the learned counsel for the petitioner and perused the
records.
8.A perusal of the judgment passed in O.S.No.153 of 2017 would
clearly indicate that on receiving the summons, all the three defendants
had appeared in person before the Court. Therefore, they had knowledge
about the filing of the suit and its listing. However, they decided not to
file written statement and deliberately kept away from the proceedings.
After the execution of the Sale Deed, the present application has been
filed. A reading of preamble to the judgment in O.S.No.153 of 2017
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C.R.P.(NPD) (MD) No.1252 of 2021
would clearly demonstrate that the defendants have come to Court with a
false case, suppressing material fact. The learned Principal Sub Judge,
Dindigul has totally overlooked the above and has condoned the delay
without sufficient cause being shown and further, the cause which has
been shown is a false one. Consequently, the Civil Revision Petition is
allowed and the order dated 29.11.2019 made in I.A.No.1007 of 2018 in
O.S.No.153 of 2017 is set aside. No costs.
19.11.2021
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The Principal Sub Court, Dindigul
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C.R.P.(NPD) (MD) No.1252 of 2021
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.1252 of 2021
Dated: 19.11.2021
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