THIRU N BALASUBRAMAIAN Vs. K KAMALA

JUDGEMENT

(1.) Heard both sides

(2.) The respondent herein filed O.S.No.6 of 1999, on the file of the Additional District Sessions Judge/FTC III, Madurai, against Esthar Rani and 5 others, for specific performance of an agreement of sale, dated 25.12.1995 executed by the 1st defendant, Esthar Rani in favour of the plaintiff. It is stated in the plaint that the first defendant, Esthar Rani, as power Agent of defendants 2 and 3 executed a sale agreement in favour of the plaintiff/the respondent herein and the petitioners herein viz., 5th and 6th defendants in that suit were residing in the suit property at the time execution of the sale agreement and they were also aware of the same and after the execution of the sale agreement, the defendants 1 to 4 evaded the execution of the sale deed and the revision petitioners knowing fully that the respondent has got sale agreement in her favour, got the sale deed in respect of the same property executed by the defendants 1 to 4 on 12.11.1997 in their favour and therefore, a suit was filed for the specific performance of sale, dated 25.12.1995. As the defendants did not appear, they were called absent and set ex-parte and ex-parte decree was passed on 26.04.1999. The plaintiff/respondent herein filed E.P.No.324 of 2000 for executing the sale deed as per the decree and as the defendants 1 to 4 did not execute the decree, the sale deed was executed by the court on 18.06.2003. Thereafter, the respondent herein filed E.P.No.260 of 2003 for recovery of possession of the properties and at that time, the petitioners herein filed an application I.A.No.187 of 2004 in O.S.No.6 of 1999 to set aside the ex-parte decree passed against them stating that no summons were severed on them and at the time of institution of suit, they were living in 24, Middle Street, Tallakulam, Madurai and in the plaint, their address was shown as 26, Vayakattu Street, Goripalayam, Madurai and therefore, summons were not served on them and they are not aware of the suit nor the passing of the decree. It is further stated that no summons were served on the petitioners in E.P.No.324 of 2000 and therefore, the ex-parte decree passed against them is to be set aside.

(3.) The respondent filed a counter stating that the petitioners were residing in the same address, viz., 26, Vayakkatdu Street, Goripalayam, where the suit property is also situate and summons were served on them and they refused to receive the summons and therefore, paper publication was effected and ex-parte decree was passed and the petitioners were aware of the entire proceedings. It is further stated that notice was sent to the petitioners even to the address,24, Middle Street, Tallakulam, Madurai and the petitioners refused to receive the notice and hence, it cannot be contended by the petitioners that they are not aware of the suit and summons were duly served on them and therefore, the application field to set aside the ex-parte decree, without filing an application to condone the delay is not maintainable and the sale deed has also been executed by the Court in her favour and no proper or valid reason has been stated by the petitioners to set aside the ex-parte decree.