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2023 DIGILAW 613 (MAD)

Indumathi v. S. Kavitha Shanmugam

2023-02-21

R.VIJAYAKUMAR

body2023
ORDER : PRAYER: Civil Revision Case is filed under Section 115 of Code of Civil Procedure, to allow this civil revision petition, set aside the fair and decreetal order dated 27.04.2022 in I.A.No.1 of 2019 in O.S.No.307 of 2014 passed by the and direct to number the same. Subordinate Judge, Theni The present civil revision petition has been filed by the defendant in a suit for specific performance. 2.The respondent herein had filed O.S.No.307 of 2014 on the file of the Subordinate Court, Theni for the relief of specific performance of an agreement of sale with an alternative prayer for refund of the advance amount of Rs.5,00,000/-. 3. The defendant was set exparte for not filing a written statement and an exparte decree came to be passed on 17.03.2016. The defendant had filed I.A.No.1 of 2019 to condone the delay of 1321 days in filing an application to set aside the exparte decree. 4.In the condone delay application, the petitioner/defendant had contended that she had borrowed a sum of Rs.5,00,000/- and she was regularly paying the monthly interest. She being a woman, believed the words of the plaintiff that he would withdraw the suit, when the entire amount is settled. However, the plaintiff has proceeded with an exparte evidence and a decree came to be passed without her knowledge. 5. The defendant had further contended that she was under the bonafide belief that the suit was pending in the month of April 2019, she had paid a sum of Rs.2,50,000/- towards principal amount to the respondent/plaintiff. Suppressing the said fact, the plaintiff has obtained the exparte decree. The defendant came to know about only when she received notice in the execution proceedings. Therefore, the delay of 1321 days is neither willful nor wanton. 6.The plaintiff had filed a counter contending that the defendant had engaged a counsel and he appeared in the delivery application also. The plaintiff had further contended that the defendant had remained exparte even after receiving notice in the execution proceedings filed for execution of sale deed. When the execution proceedings are posted for delivery of property, the present proceedings have been initiated after a period of 5 years. Hence, he prayed for dismissal of the said application. 7. The plaintiff had further contended that the defendant had remained exparte even after receiving notice in the execution proceedings filed for execution of sale deed. When the execution proceedings are posted for delivery of property, the present proceedings have been initiated after a period of 5 years. Hence, he prayed for dismissal of the said application. 7. The trial Judge after considering the submissions on either side has arrived at a finding that the defendant had failed to file a written statement and she was set exparte and an exparte decree came to be passed on 17.03.2016. The trial Court has refused to accept the reason assigned by the defendant for condoning the delay of more than 4 years. The trial Court further found that the defendant has not produced any document to show that she has paid a sum of Rs.2,50,000/- in April 2019. Based upon the said reason, the trial Court has dismissed the application for condoning the delay. Challenging the same, the present civil revision petition. 8. The learned counsel for the petitioner had contended that the defendant had received a sum of Rs.5,00,000/- as loan amount and only as a security of the said loan amount, a sale agreement is entered into. The plaintiff had agreed to settle the issue on payment of loan amount. The defendant has been regularly paying the interest and believing the words of the plaintiff, she had not defended the specific performance suit. The learned counsel for the petitioner had further contended that a sum of Rs. 2,50,000/- has been paid by the defendant to the plaintiff even after the exparte decree. Hence, he prayed for condoning the delay and to restore the suit to be decided on merits. 9. Per contra, the learned counsel for the respondent had contended that the reasons assigned by the defendant for the huge delay of 4 years is not legally sustainable. The defendant has not produced any document to establish that she had paid a sum of Rs.2,50,000/- after exparte decree. Hence, he prayed for dismissal of the revision petition. 10. I have considered the submissions made on either side and perused the materials available on record. 11. It is not in dispute that the petitioner/defendant has suffered an exparte decree for specific performance on 17.03.2016. Hence, he prayed for dismissal of the revision petition. 10. I have considered the submissions made on either side and perused the materials available on record. 11. It is not in dispute that the petitioner/defendant has suffered an exparte decree for specific performance on 17.03.2016. In the affidavit filed for condoning the delay, the petitioner has contended as follows: (a).The defendant has borrowed a sum of Rs.5,00,000/- and she has been regularly paying a monthly interest and hence, she has not entered into any agreement with the plaintiff with an intention to sell the property. (b).Her husband who knew all the facts followed the Court proceedings and the plaintiff had assured that he would withdraw the suit when the entire amount settled. (c) Believing the words of the plaintiff, the defendant had not followed her counsel to give instruction for filing the written statement and also believed her husband that he would follow her case. (d). The defendant had paid a sum of Rs.2,50,000/- even after exparte decree in order to satisfy the loan amount. 12.From the above said averments in the affidavit, it could be seen that the execution of the agreement is admitted by the defendant and her husband was following the suit on behalf of the defendant. It could also be seen that believing the words of the plaintiff, she had not followed her counsel and had given instruction for filing of the written statement. The defendant had further admitted in her affidavit, she believed that her husband would follow the case. No materials have been placed on record to show that after passing of the exparte decree, the defendant has paid a sum of Rs.2,50,000/- to the plaintiff. 13.A cumulative reading of an averment in the affidavit in respect of the condone delay application would clearly reveal that the husband of the defendant was following the suit on behalf of the defendant and believing her husband, the defendant has not met her counsel to give instruction for filing of the written statement. It is not the case of the defendant that there is any matrimonial dispute between the defendant and her husband. She has not given any reasonable cause for condoning the delay of more than 4 years. It is not the case of the defendant that there is any matrimonial dispute between the defendant and her husband. She has not given any reasonable cause for condoning the delay of more than 4 years. 14.In view of the above said facts, I do not find any illegality or infirmity in the order passed by the trial Court in dismissing the condone delay application. This civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.