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2005 DIGILAW 1600 (MAD)

R. Palanisamy v. K. Sathiya Balan

2005-09-23

M.CHOCKALINGAM

body2005
Judgment :- (Civil Revision Petition against the decreetal order dated 28.4.2005 made in I.A.No.343/05 in OS.No.506/97 on the file of the Subordinate Judge, Tirupur.) The order of the learned Subordinate Judge, Tirupur allowing the application to condone the delay of 2040 days filed by the first defendant in a suit for specific performance filed by the petitioner herein, is challenged by the petitioner/plaintiff. 2. Admittedly, the suit was filed by the petitioner/plaintiff seeking the relief of specific performance on an agreement of sale in O.S.No.506/97. There were two defendants and both the defendants were set ex parte and an ex parte decree was passed on 23.6.99. Subsequent to the same, an application for setting aside the ex parte decree was filed by the respondent/first defendant along with an application to condone the delay of 2040 days, since the application was filed on 11.4.2005. 3. What was all contended by the respondent/first defendant before the courts below and equally here also is that there was no service of summons. The defendants were kept in darkness. They did not know about the ex-parte decree passed on 23.6.99. Hence, the delay was caused. They came to know the ex parte decree at the time of execution proceedings for delivery. Under the circumstances, it was to be set aside. What was contended by the plaintiff before the court below and equally here also is that it was a suit of the year 1997, and summons were taken to the correct address, and though it is not served personally, they were served by substituted service. Subsequently, the ex parte decree was passed by the Court on 23.6.99, pursuant to which, the sale deed was executed on 23.9.2004. Under such circumstances, they sought delivery through execution proceedings which was filed on 19.11.2004. While pending the same, instant application to set aside the ex parte decree was brought forth contending that application contains untrue allegations. 4. After hearing both sides, the learned Subordinate Judge allowed the application filed by the defendants, thereby setting aside the ex parte decree passed on 23.6.1999 without costs. Hence, this revision has been brought forth by the petitioner/plaintiff. 5. It is also brought to the notice of this Court that the plaintiff has also filed another revision, which is pending in this Court in CRP.PD.NO.1066 OF 2005 challenging the order passed in I.A.No.345 of 2005 filed by the second defendant. 6. Hence, this revision has been brought forth by the petitioner/plaintiff. 5. It is also brought to the notice of this Court that the plaintiff has also filed another revision, which is pending in this Court in CRP.PD.NO.1066 OF 2005 challenging the order passed in I.A.No.345 of 2005 filed by the second defendant. 6. The Court heard the learned counsel for the revision petitioner as well as the respondent. 7. Admittedly, the suit was filed based on the strength of an agreement of sale and seeking for decree for specific performance with a direction to execute the sale deed. The consideration of the sale deed was more than Rs.3,00,000/-. It is also an admitted position, that the first defendant/ respondent herein was not personally served with summons of the Court, though it was a claim by the petitioner/plaintiff that there was a substituted service of summons on the defendants, but in the instant case, the court was not satisfied with the same. In such a case, there was a delay of 2040 days. In the interest of justice, the ex parte decree should be set aside and the parties should be given an opportunity to put forth the defence and the matter can be decided on merits. The Court has to necessarily agree with the view of the learned Subordinate Judge and affirmed that part of the order. 8. The learned Subordinate Judge has passed an order without awarding any costs. This court is hereby awarding cost. Accordingly, the respondent/first defendant is directed to pay a sum of Rs.2000/- towards the cost, to the petitioner within a period of two weeks herefrom. 9. It is also brought to the notice of the Court by the learned counsel for the petitioner that a sale deed has also been executed by the Court on 23.9.2004 at the cost of the plaintiff/petitioner, and he purchased the stamp papers to the value of Rs.50,500/-. As he had spent the said sum, it has to be compensated because he could not get it back. 10.Under the circumstances it has become necessary for this Court, to issue a direction to the respondent to deposit a sum of Rs.25,000/- before the learned Subordinate Judge, and the learned Judge shall keep the same to the credit of O.S.No.506 of 1997 till the disposal of the suit. 10.Under the circumstances it has become necessary for this Court, to issue a direction to the respondent to deposit a sum of Rs.25,000/- before the learned Subordinate Judge, and the learned Judge shall keep the same to the credit of O.S.No.506 of 1997 till the disposal of the suit. The court has to pass necessary orders with regard to this amount at the time of final disposal of the suit on merits and in accordance with law. 11. With the above observations, the Civil Revision Petition is disposed of. Consequently, connected CMP.NO.16222 of 2005 is closed. No costs.