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2018 DIGILAW 1910 (MAD)

Kaluvayammal v. Perumal

2018-06-20

R.THARANI

body2018
ORDER : Heard Mr. C. Jeganathan, learned counsel appearing for the petitioners and Mr. M. Karuppasamy pandian, learned counsel appearing for the respondent. 2. The petitioners filed the above Civil Revision Petition, challenging the order dated 04.01.2007 in I.A.No.283 of 2006 in O.S.No.303 of 2000 on the file of the learned Subordinate Judge, Uthamapalayam. 3. On the side of the petitioners, it is stated that the second petitioner who is the son of the first petitioner was suffering from cancer and first petitioner was not able to move as she is a handicapped person and the counsel on record has not stated about the hearing date so she could not present the written statement in time. It is further stated that there is no enforceable agreement between the revision petitioners and the respondent and he prayed to set aside the order passed by the lower Court and the petition under Section 5 of the Limitation Act is to be allowed. 4. The respondent herein filed a suit in O.S.No.303 of 2000 against the petitioners 1 and 2 and obtained an exparte decree on 28.01.2003. There was a delay of 1103 days for filing a petition to set aside the exparte decree. 5. On the side of the petitioners, it is stated that the sale agreement is fraudulent one. The learned counsel for the petitioners has not intimated anything regarding the case and hence, the petitioners were not able to appear on the date of hearing. It is further stated that the second petitioner was suffering from cancer for three years and was undergoing treatment and the first petitioner was not able to move as she is a handicapped person. 6. On the side of the petitioners, he relied upon the Judgment passed by this Court in the case of Krishnamoorthy v. Parasuraman and others reported in (2007) 3 MLJ 636 . He also placed reliance on the judgment passed by this Court in the case of Ravi Enterprises and Others v. Indian Bank and Others reported in 2008(1) CTC 785 . He relied on the Judgment passed by this Court in the case of K.Kalaiyarasan and other v. K.Selvi and other in C.R.P.(PD)NOs.4004 and 4005 of 2014. 7. He also placed reliance on the judgment passed by this Court in the case of Ravi Enterprises and Others v. Indian Bank and Others reported in 2008(1) CTC 785 . He relied on the Judgment passed by this Court in the case of K.Kalaiyarasan and other v. K.Selvi and other in C.R.P.(PD)NOs.4004 and 4005 of 2014. 7. On the side of the respondent, it is stated that the petitioners are duty bound to verify regarding the hearing date of the case and after filing the suit in O.S.No.303 of 2000, the respondent has filed another suit in O.S.No.283 of 2003 before the learned District Munsif, Uthamapalayam against the petitioners and five other persons for a relief of permanent injunction. The petitioners appeared in that case and filed written statement and subsequently they failed to proceed with the case and that case was also ended in favour of the respondent. The petitioners are well aware of the exparte decree during the pendency of O.S.No.283 of 2003. While the suit in O.S.No.283 of 2003 is filed, they have not take any steps to set aside the exparte decree. Subsequently, the respondent filed a petition in E.P.No.213 of 2003 before the learned Sub Judge, Periyakulam. Again the E.P.No.213 of 2003 was transferred to Sub Court, Uthamapalayam and it was numbered as E.P.No.103 of 2004. Though the petitioners received notice regarding the execution petition, they have not taken any steps to set aside the exparte order. Only in the year 2006, the petitioners with one Singamuthu filed E.A.No.32 of 2006 and the same was also dismissed on 19.09.2006 after full enquiry. 8. Records perused. From a perusal of the records, it is clear that the respondent herein filed a suit before the learned Sub Judge, Periyakulam O.S.No.303 of 2000 on 16.01.2000 and has obtained the exparte decree on 28.01.2003. The petitioners received the summons and engaged an Advocate and these facts are admitted in the petition itself. The petitioners failed to file written statement and as such the respondent herein obtained the exparte decree against the petitioners. Again the respondent filed E.P.No.213 of 2003 and the petitioners received notice and the petitioner is aware of the suit and the execution petition. On 28.03.2005, the petitioners are set exparte and again the respondent obtained exparte order on 03.02.2006. The petitioners failed to file written statement and as such the respondent herein obtained the exparte decree against the petitioners. Again the respondent filed E.P.No.213 of 2003 and the petitioners received notice and the petitioner is aware of the suit and the execution petition. On 28.03.2005, the petitioners are set exparte and again the respondent obtained exparte order on 03.02.2006. The respondent filed E.A.No.32 of 2006 for delivery of possession and again notice was sent to the petitioners but the petitioners failed to appear on 27.01.2006 and the delivery was ordered. 9. Though the petitioner claimed that their Advocate failed to intimate the date of hearing, the petitioners received the summons in E.P.NO.213 of 2003 and E.A.No32 of 2006. Hence the contention of the petitioners that the Advocate failed to intimate the case particulars is not acceptable. 10. On the side of the respondents, it is stated that the petitioners have not filed any document to show that the second petitioner suffered from cancer and the first petitioner is a handicapped person. 11. In the circumstances, the petitioners have failed to prove that they have suffered from disease and they have failed to prove that they are not aware of the case proceedings. Each day delay is to be explained. There is no sufficient reason to interfere with the order passed by the lower Court. Hence, the Civil Revision Petition is dismissed.