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2012 DIGILAW 3444 (MAD)

Anai Gounder v. Maria Prakasam

2012-08-03

K.RAVICHANDRA BAABU

body2012
Judgment :- 1. The petitioner has filed this Civil Revision Petition aggrieved against the order passed by the Court below made in I.A.No.138 of 2008 in O.S.No. 68 of 2006 dated 7.8.2009, wherein and whereby the application filed by the respondent herein seeking for condonation of delay of 316 days in filing the petition to set aside the exparte decree passed on 22.1.2007 is allowed. 2. The petitioner herein as the plaintiff filed a suit in O.S.No. 68 of 2006 on the file of the Sub Court, Mettur against the respondent herein as the defendant seeking for specific performance of an agreement and for permanent injunction restraining the defendant from alienating or encumbering the suit property. The suit was decreed exparte on 22.1.2007. The respondent herein filed an application under Section 5 of the Limitation Act in I.A.No. 138 of 2008 seeking to condone the delay of 316 days in filing the set aside petition. In the affidavit filed in support of the said application the respondent herein as the petitioner therein has raised a plea that no proper notice was served on him in the suit. The petitioner herein has contested the said application by stating that the respondent herein was put on notice properly by the Court below. 3. The trial Court after considering the rival submissions as well as the pleadings made by the respective parties has found that there was no proper notice served on the respondent herein in the suit and the paper publication made cannot be construed as proper service on the respondent. Consequently, on satisfying with the reasons stated by the respondent herein seeking for condonation of the delay, the Court below has allowed the application on payment of cost of Rs.750/-. Aggrieved against the said order the present Civil Revision Petition has been filed. 4. Learned counsel appearing for the petitioner contended that in pursuant to the exparte decree passed on 22.1.2007, an execution petition was filed, wherein a sale deed was also executed on 30.6.2007 and only for delivering the suit property the E.P is pending. Therefore, at this stage there is no justification for condoning the delay by the Court below. 5. 4. Learned counsel appearing for the petitioner contended that in pursuant to the exparte decree passed on 22.1.2007, an execution petition was filed, wherein a sale deed was also executed on 30.6.2007 and only for delivering the suit property the E.P is pending. Therefore, at this stage there is no justification for condoning the delay by the Court below. 5. Per contra, the learned counsel appearing for the respondent has contended that once the Court below has found that there was no proper notice served on the respondent in the suit, he is entitled to be heard on merits in the suit and consequently the order passed by the Court below in condoning the delay of 316 days does not warrant any interference by this court. It is also sated by the learned counsel for the respondent that as directed by the Court below a sum of Rs. 750/- has also been deposited on 28.2.2009. 6. Heard the learned counsel for the respective parties. 7. The Court below has considered the application filed by the respondent under Section 5 of the Limitation Act and allowed the same on satisfying with the reasons assigned by the respondent in filing the application with a delay of 316 days. The Court below has specifically found that there was no proper notice served on the respondent. It is also found by the Court below that as per Ex.A1 ration card, the genuineness of which is not disputed by the petitioner, the respondent is residing only at Palani and not in Pudukkottai. So taking into consideration of all these facts and circumstances, the Court below has condoned the delay of 316 days by specifically finding that the reasons assigned by the respondent is genuine and acceptable. Consequently while allowing the said application the Court below also imposed a cost of Rs. 750/-which is also said to have been paid within the stipulated time. 8. While considering Section 5 application, the Court below has exercised its discretion in favour of the respondent by specifically finding that the reasons assigned by the respondent is genuine and acceptable. This Court, while exercising the revisional jurisdiction, does not find any illegality or infirmity in the order passed by the Court below. No doubt, in pursuant to the execution petition filed , a sale deed is said to have been executed on 30.6.2007. This Court, while exercising the revisional jurisdiction, does not find any illegality or infirmity in the order passed by the Court below. No doubt, in pursuant to the execution petition filed , a sale deed is said to have been executed on 30.6.2007. But that itself cannot be a ground for denying an opportunity of hearing the matter on merits to the respondent. Consequently, taking into consideration of the facts and circumstances, as well as the order passed by the Court below, I find no merits in the Civil Revision Petition and accordingly, the same is dismissed. Consequently, the connected M.P. is closed. No costs. 9. Learned counsel for the petitioner submits that the suit is of the year 2006 and therefore the Court below can be directed to dispose of the same within a stipulated time. Accordingly, the trial Court is directed to dispose of the suit in O.S.No. 68 of 2006 within a period of two months from the date of receipt of copy of this order.