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2008 DIGILAW 10 (MAD)

Maragatham v. Ramasami & Others

2008-01-02

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- The order passed in I.A.No.857 of 2006 in I.A.No.248 of 2001 in O.S.No.359 of 2000 is under challenge before this Court at this revision. 2. The revision petitioner is the third plaintiff in O.S.No.359 of 2000. I.A.No.857 of 2006 was filed to set aside the ex-parte final decree passed in I.A.No.248 of 2001 in O.S.No.359 of 2000. 3. Heard Mr. S.V. Jayaraman, learned senior counsel appearing for the petitioner as well as Mr. S. Parthasarathy, learned senior counsel appearing for the first respondent and Mr. R. Nalliyappan, learned counsel appearing for the second respondent and considered their respective submissions. 4. The learned senior counsel appearing for the revision petitioner would contend that after passing the preliminary decree for partition in O.S.No.359 of 2000 on the file of the Court of Subordinate Judge, Tirupur, without notice to the plaintiff, the said preliminary decree was amended on the basis of an office note. On the above submissions, the entire records were called for from the Court below and perused. A perusal of the preliminary decree passed on 28. 2000 in O.S.No.359 of 2000 on the file of the Court of Subordinate Judge, Tirupur would go to show that the defendants have submitted to a decree by way of filing a memo to that effect and Court fee also paid by the defendants for declaring the respective 1/3 share each of D1 and D2 and on that basis, preliminary decree for partition was passed by the Trial Court on 28. 2000. But unfortunately, while drafting the decree, due to the mistake of the typist, only the share of the plaintiff was declared and the shares of the defendants allotted to them in the judgment in O.S.No.359 of 2000 was omitted to be incorporated in the decree drafted in O.S.No.359 of 2000. That is why, an office note was prepared to rectify the mistake committed by the typist in allotting the respective shares of the defendants which were already been declared in the judgment. Accordingly, the learned Subordinate Judge, Tirupur, had given directions to the office to rectify the defects under the office note dated 17. 2004. Accordingly, the shares already been declared to the defendants were incorporated in the preliminary decree. 5. It is seen from the adjudication paper in I.A.No.248 of 2001 in O.S.No.359 of 2000, a final decree application, notice has been served to the defendants on 18. 2004. Accordingly, the shares already been declared to the defendants were incorporated in the preliminary decree. 5. It is seen from the adjudication paper in I.A.No.248 of 2001 in O.S.No.359 of 2000, a final decree application, notice has been served to the defendants on 18. 2001 itself and they were set ex-parte and a Commissioner was appointed to effect the partition in accordance with the preliminary decree and the Commissioner has also filed his report and plan and thereafter a final decree was passed in terms of the preliminary decree, on 22.08.2003. The third plaintiff in O.S.No.359 of 2000, is the revision petitioner herein. It is pertinent to note that the final decree application in I.A.No.248 of 2001 was filed by the defendants in O.S.No.359 of 2000. The prayer in the plaint in O.S.No.359 of 2000 is, to partition 1/3 share of the suit property. Since the defendants have submitted to decree, the shares of the plaintiff as well as the defendants have been declared in the preliminary decree. The plaintiffs 1 and 2 have not preferred a petition to set aside the ex-parte final decree passed in the suit. The third plaintiff has preferred an application in I.A.No.857 of 2006 under Section 5 of the Limitation Act, to condone the delay in filing a petition to set aside the ex-parte decree. 6. After considering the averments in the petition and also the contentions of the learned counsel for the respondents, the learned Subordinate Judge, has rightly dismissed the application on the ground that there is no material to set aside the ex-parte final decree passed in I.A.No.248 of 2001. The learned Senior Counsel relied on a decision of this Court reported in (M. Krishnaswamy (deceased) & Others Vs. K. Arumugham) and contended that to condone the inordinate delay in preferring a petition to set aside the ex-parte decree under Order 9 Rule 13 of C.P.C., each and every delay is to be satisfactorily explained to the Court. Under such circumstances, I do not find any reason to interfere with the well considered order of the learned Subordinate Judge, Tirpur in I.A.No.857 of 2006. 7. In fine, this Civil Revision Petition is dismissed confirming the order passed in I.A.No.857 of 2006 in I.A.No.248 of 2001 in O.S.No.359 of 2000 on the file of the learned Subordinate Judge, Tirupur. No costs.