KASI VISWANATHAN Vs. JAYALAKSHMI AMMAL

JUDGEMENT

(1.) THIS is an application filed under Section 5 of the Limitation Act to condone the delay of 1850 days in filing the First Appeal as against the judgment of the learned Judge, Chidambaram in O.S. No. 86 of 1981.

(2.) THE suit was filed by the plaintiffs/the first respondent herein for a preliminary decree for partition and separate possession of the plaintiff's 1/4th share in the suit properties and for appointing a Commissioner for the division of the properties. THE petitioner before this Court seeking condonation of the delay is the 8th defendant being one of the alienees. THE suit was filed by one Jayalakshmi, claiming to be the wife of the deceased Ramamurthy. One Raja Iyer died in the year 1935 leaving behind his two sons Duraisamy Iyer, the first defendant in the suit and C.R. Krishnamurthy, Sabesan and Ramamurthy are the sons of the first defendant. Ramamurthy died in the year 1976 leaving behind Jayalakshmi his wife who is the plaintiff in the suit. THE other defendants belong to the branch of C.R. Krishnamurthy. THErefore, in the capacity of being the wife of Ramamurthy, the plaintiff filed the suit claiming 1/4th share. THE suit was, however, decreed in favour of the plaintiff granting her 1/2 share in all the items of the property. However, the 8th defendant, the petitioner herein remained ex parte.

(3.) THE learned counsel also relied on the observations in Mulla, Volume II, 15th Edition, Page 1338. THE learned author, had commented that the defendant against whom an ex parte decree is passed is at liberty, to apply to set aside the decree under Order 9 Rule 13 or to appeal from the decree or to apply for a review of the judgment. He is entitled to apply under the said Rule to set aside the decree and at the same time to appeal from the decree. Further he is also entitled to appeal from the decree without a previous application under Order 9, Rule 13 C.P.C. Simultaneously, he is also entitled to apply for a review.