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2002 DIGILAW 204 (MAD)

P. Subramaniam v. Rathinam

2002-03-08

S.JAGADEESAN

body2002
Judgment : 1. Heard both the learned counsel. By consent, the civil revision petition itself is taken up for final disposal. 2. The petitioner has filed this revision petition against the conditional order of the Court below directing the petitioner to pay a sum of Rs.5,000 to the respondent by way of costs on or before 30.12.2000 for setting aside the ex parte decree in O.S.No.443 of 1996 on the file of the Subordinate Judge, Tiruppur. 3. Learned counsel for the petitioner represents that the petitioner was not informed about the conditional order and he could not, as such, comply with the same. Further, the petitioner could not challenge the order, as his counsel did not file the copy application. 4. In fact, the civil revision petition itself was filed with a delay of 173 days. As notice was already ordered and the learned counsel for the respondent entered appearance, the delay was condoned with a direction that the civil revision petition will be heard. 5. The suit is of the year 1996 filed for specific performance by the respondent herein. The ex parte decree was passed on 27.8.1998. Subsequently, the petitioner filed the application for setting aside the ex parte decree. Considering the facts that the suit is one for specific performance, and that the petitioner is losing the property, the Court below thought fit to set aside the ex parte decree by imposing a condition. When the Court below exercised its discretion in favour of the petitioner, it is for the petitioner to comply with the conditional order to have the benefit of trial. The petitioner neither complied with the conditional order nor filed any petition for extension of time for such, compliance. This conduct of the petitioner will establish his intention not to comply with the order of the lower Court. 6. When the petitioner failed to appear and an ex parte decree was passed and also when the Court below having exercised its indulgence in favour of the petitioner, it is for the petitioner to have the benefit of the same in strict compliance of the condition imposed therein. It is not open to any litigant to discard the conditional order and challenge the same after the time limit prescribed in the order. This is nothing but a clear intention of protracting the proceedings. It is not open to any litigant to discard the conditional order and challenge the same after the time limit prescribed in the order. This is nothing but a clear intention of protracting the proceedings. When the petitioner being the defendant in the suit and wants to avoid the ex parte decree, he ought to have complied with the conditional order within the time granted by the Court below. Now, another 1% years had lapsed after setting aside the ex parte decree and the petitioner cannot be permitted to have such benefit of protracting the litigation at the costs of the respondent herein. 7. Considering the entire facts and circumstances of the case, the petitioner is directed to pay a sum of Rs. 10,000 (Rupees ten thousand only) including the cost awarded by the Court below on or before 22.3.2002 to the respondent herein without awaiting either the certified copy or the carbon copy of the order in this civil revision petition. On such compliance, the civil revision petition shall stand allowed and O.S.No.443 of 1996 on the file of the Subordinate Court, Tiruppur is restored on file. The Court below is directed to dispose of the said suit within three months from the date of receipt of a copy of this order. In case the petitioner fails to comply with the above conditional order, the civil revision petition shall stand dismissed with cost of Rs. 1,000 (Rupees one thousand only).