ALIYARUKUNJU ABDUL SALAM Vs. LAKSHMI AMMAL RENJINI

JUDGEMENT

(1.) The revision is filed by the plaintiff in OS No.12/2001 of the Sub Court, Attingal. The suit was filed seeking specific performance of a contract for sale of immovable property. An ex parte decree came to be passed on 27/1/2003. The defendant filed IA No.1578/2006 seeking to set aside the ex parte decree and to condone the delay of 1315 days in filing the application. The plaintiff filed objection inter alia stating that summons and notice were served before the decree and even after the decree when the document was executed through Court. In all such proceedings, defendant had appeared through counsel and sought time to file objection. Therefore, the application is filed without any bonafides.

(2.) Before the trial Court, defendant was examined as PW1 and she relied upon Exts.A1 to A3. The trial Court found that sufficient opportunity was granted to the defendant to contest the matter and that apart, after having received the notice in the Execution Petition, she did not file any objection and remained ex parte. The decree-schedule property was delivered through Court proceedings and the plaintiff cultivated rubber saplings in the property which is in the yielding stage. It was found that the petitioner/defendant was fully aware of the delivery of the property and therefore the contrary contention cannot be accepted. Trial Court also found that the documents produced by her to indicate that she was suffering from Astma was not sufficient enough to explain the delay of 1315 days when it is proved that she was aware of the suit, the decree passed and also that the property had been delivered to the plaintiff. Hence it was found that there was no sufficient cause to condone delay. Accordingly, the application to set aside ex parte decree was dismissed.

(3.) The defendant preferred an appeal before the District Court. By judgment dated 19/9/2009, the District Court observed that the suit being one for specific performance of contract for sale of immovable property, and though the written statement filed before the Court below were not accepted, it would show elements of bonafide on the part of the defendant and as it is seen that the absence was not wilful, the delay is to be condoned on payment of cost. Accordingly, the delay had been condoned on payment of cost of Rs. 3,000/-. On deposit of the above, the appeal was directed to be allowed setting aside the order passed by the trial Court.