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2008 DIGILAW 2865 (MAD)

K. S. Nannammal v. M. Saradha

2008-08-07

S.TAMILVANAN

body2008
Judgment :- This Civil Revision Petition has been preferred against the Order, dated 310. 2007 made in I.A.No.358 of 2007 in O.S.No.633 of 2002 on the file of the Principal subordinate Judge, Salem. 2. It is an admitted fact that the respondent/plaintiff had filed the suit in O.S.No.633 of 2002 against the revision petitioner/defendant, seeking a decree for specific performance, based on the alleged agreement of sale entered into between the revision petitioner and the respondent herein. The suit was decreed exparte. Aggrieved by which, the revision petitioner herein filed an application to set aside the exparte decree, that was allowed. However, again exparte decree, on account of the non-appearance of the revision petitioner/defendant was passed by the court below. Pursuant to the decree, the respondent/decree holder filed Execution Petition before the Executing Court and as per the materials available on record, it is seen that the sale deed was also executed in favour of the respondent/decree holder. At this juncture, the revision petitioner filed an application under Order IX Rule 13 CPC, along with the application, under Section 5 of the Limitation Act to condone the delay of 418 days in preferring the aforesaid Interlocutory Application, that was dismissed by the court below. Aggrieved by which, this Civil Revision Petition has been filed. 3. Mr.G.K.Ilanthiraiyan, learned counsel appearing for the revision petitioner contended that the court below has passed a crippled order, and according to him, proper reasons have not been given in the impugned order and therefore, this Civil Revision Petition has to be allowed. 4. Per contra, Mr.T.Murugamanickam, learned counsel appearing for the respondent submitted that there was proper notice to the revision petitioner/defendant in the Execution Proceedings and in the counter filed, the respondent herein has specifically averred the aforesaid fact. There is no bonafide reason assigned for condoning the delay of 418 days and therefore, he strenuously raised his objection against this revision petition. 5. Admittedly, the suit was filed for specific performance against the revision petitioner in the year 2002. Due to the non-appearance of the revision petitioner/defendant, the suit was decreed exparte. Subsequently, it is seen from the impugned order that the exparte decree was set aside, on the petition filed by the revision petitioner herein. 5. Admittedly, the suit was filed for specific performance against the revision petitioner in the year 2002. Due to the non-appearance of the revision petitioner/defendant, the suit was decreed exparte. Subsequently, it is seen from the impugned order that the exparte decree was set aside, on the petition filed by the revision petitioner herein. However, again the suit was decreed exparte, due to the non-appearance of the revision petitioner/defendant and further, in the Execution Petition, only after service of notice to the revision petitioner, the same was decided and sale deed was also executed in favour of the respondent/decree holder by the Executing Court. In the Interlocutory Application, relating to the impugned order, the petitioner herein has not satisfactorily explained any reason for the inordinate delay of 418 days caused in filing the un-numbered application under Order IX Rule 13 CPC. In the impugned order, the court below has specifically stated that the suit filed for specific performance was already decreed exparte and subsequently on application, the same was set aside by the court below and second time, the suit was decreed exparte and after 418 days, the second petition under Order IX Rule 13 CPC has been filed and hence, there is no merits in the application filed under Section 5 of the Limitation Act. 6. Considering the facts and circumstances, since the inordinate delay has not been satisfactorily explained, as per Section 5 of the Limitation Act, I am of the view that there is no error or illegality in the order to be interfered with at this stage, after the execution of the sale deed through court. I could find no bonafide reason to allow the revision petition. 7. In the result, this Civil Revision Petition fails and accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.