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2014 DIGILAW 3305 (MAD)

Nadana Mudaliar v. Dhanapal (Died)

2014-09-12

S.VIMALA

body2014
Judgment : 1. The revision petitioner filed a suit in O.S.No.31 of 2000, seeking the relief of specific performance based on the sale agreement dated 12.12.1997. In that suit, summon has been served on the defendant and the defendant has entered appearance through counsel. For non filing of written statement, the defendant was set ex parte and ex parte decree has been passed on 25.04.2001. 2. Thereafter, the sole defendant in O.S.No.31 of 2000 died and the legal representatives filed a petition to bring them on record in E.A.No.118 of 2006. Thereafter, the plaintiff has filed E.P.No.156 of 2007. In the Execution Petition, all the legal representatives of the deceased defendant have been brought on record. 3. Application in I.A.No.2138 of 2008 in O.S.No.31 of 2000 was filed seeking to set aside the ex parte decree along with the application to condone the delay of 2476 days in filing the application to set aside the ex parte decree. That application has been allowed by order dated 12.01.2010. Challenging the same this revision has been filed. 4. Whether there are sufficient cause for the condonation of the delay has been raised before the Court below. The learned counsel for the petitioner has filed dates and events, which are extracted hereunder:- S.No. Date Events 1 12.12.1997 Oral agreement entered between the plaintiff and defendant Mr. Dhanapal 2 -- Sale consideration is Rs.6,305/- 3 12.12.1997 Rs.6,000/- paid as advance by the plaintiff to the defendant 4 30.11.1999 Legal notice issued by the plaintiff to the defendant 5 08.12.1999 Reply notice issued by the defendant 6 19.01.2000 Suit filed for specific performance of the oral agreement dated 12.12.1997 7 - Suit summon served on the defendant, defendant entered ppearance in Court through counsel and remained ex parte 8 25.04.2001 Suit decreed ex parte 9 05.08.2003 Defendant Dhanapal died 10 31.01.2006 Petition filed to bring the legal heirs on record 11 17.09.2007 Counter filed by the 3rd and 4th respondent 12 2007 Execution petition filed in E.P.No.156 of 2007 13 2007 Notice received by respondent in the execution petition E.P.No.156 of 2007 14 21.01.2008 Respondents sold the property to third parties 15 26.03.2008 Petition filed in I.A.No.2138 of 2008 to condone the delay of 2476 16 12.01.2010 I.A.2138 of 2008 allowed. 5. 5. From the above, it is seen that the Legal heirs have already sold the property on 21.01.2008 and a copy of the sale deed has also been enclosed along with typed set of papers. The conduct of the legal representatives, in protracting proceedings as long as possible and thereafter, trying to play fraud upon the Court by filing the application to set aside the exparte decree after selling the property in favour of third parties, has to be deprecated. 6. The Court below, while passing order, has simply stated that no prejudice would be caused to the other side if the delay is condoned. The Court, while condoning the delay, should take into account the interest of the decree holder also. 7. A perusal of the order passed by the Court below would show that the sufficient cause, which ought to have been considered, had not been considered at all. Simply relying upon the decisions of the High Court and Supreme Court, without finding out whether the decisions would be applicable to the facts of the present case, the Court below has chosen to condone the delay. 8. In the circumstances, the order passed by the Court below cannot be sustained. Therefore, the revision is allowed and the order passed by the Court below is set aside. Consequently connected Miscellaneous Petition is closed. No costs.