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2020 DIGILAW 367 (MAD)

Yasothai v. Parameshwari

2020-02-19

R.THARANI

body2020
JUDGMENT : (Prayer: This Civil revision petition is filed under Section 115 of C.P.C., to call for the records relating to the order passed in I.A.No.320 of 2015 in O.S.No.226 of 2010 dated 03.09.2019 on the file of the Sub Court, Thirumangalam and set aside the same.) 1. Heard learned counsel appearing for the petitioner. 2. This civil revision petition has been filed against the order passed in I.A. No. 320 of 2015 in O.S.No.226 of 2010 dated 03.09.2019 on the file of the Sub Court, Thirumangalam. 3. The petitioner herein is the defendant and the respondent herein is the plaintiff. The respondent herein has filed a suit in O.S.No.226 of 2010 for a prayer of partition. In that suit, the defendant has filed a petition in I.A.No.320 of 2015 to condone the delay of 984 days in filing the petition to set aside the exparte decree and that petition was dismissed by the trial Court. Against which, the petitioner has come forward with the revision petition. 4. The brief substance of the application in I.A.No.320 of 2015 is as follows: The petitioner has filed a detailed written statement and she was under the impression that her counsel would follow the case. The petitioner was in receipt of the notice in I.A.No.33 of 2015 and came to know through a new counsel engaged by the petitioner that the exparte decree was passed in 06.03.2013 in the original suit. The previous counsel failed to inform the stage of the suit to the petitioner and there was a delay of 984 days in filing of the petition to set aside the exparte decree. 5. The brief substance of the counter in I.A.No.320 of 2015 is as follows: The contents of the petition are totally false. The petitioner is blaming the previous counsel, which is unbelievable. The petition is devoid of merits. Only with a motive to drag on the cases, the petition was filed. 6. The trial Court after considering both sides, dismissed the petition and against which, the petitioner has preferred the revision. 7. On the side of the petitioner, it is stated that the petitioner came to know about the exparte decree only after receiving the notice in I.A.No.33 of 2015. The property absolutely belong to the petitioner and there is no question of partition. It is stated that the property is the residential house of the petitioner. 7. On the side of the petitioner, it is stated that the petitioner came to know about the exparte decree only after receiving the notice in I.A.No.33 of 2015. The property absolutely belong to the petitioner and there is no question of partition. It is stated that the property is the residential house of the petitioner. The plaintiff and the defendant are the legal heirs of the original owner. The original owner executed a settlement deed in favour of the petitioner and prayed the petition to be allowed. 8. On the side of the respondent, it is stated that the partition suit was filed on 12.04.2010. The petitioner was set exparte earlier on 10.07.2010. A separate set aside petition along the written statement was filed on 10.11.2010 and that the second exparte order was passed on 16.03.2013. The present set aside petition was filed only on 14.12.2015, after a delay of 984 days. Except a single allegation against the counsel, the petitioner has not reasonable grounds to condone the delay. The case is pending for the past 10 years and prayed the petition to be dismissed. 9. It is seen that the suit is filed for partition and the plaintiff and the defendant are sisters. The claim of the petitioner is that the property belongs to the petitioner by way of a settlement deed. The claim of the respondent is partition. 10. In the above circumstances, an opportunity for the petitioner to put forth her case is to be given and the delay has to be condoned on terms. Hence, this civil revision petition is allowed on condition of payment cost of Rs.1,000/- (Rupees One Thousand only) to the respondent on or before 24.02.2020 and the order passed in I.A.No.320 of 2015 in O.S.No.226 of 2010 dated 03.09.2019 on the file of the Sub Court, Thirumangalam is set aside. No Costs. Consequently, connected miscellaneous petition is closed. 11. Post the matter on 25.02.2020 under the caption 'for reporting compliance'.