(1.) The civil revision petitioners herein are the applicants in I.A.No.1055 of 2005 and the defendants in the suit in O.S.No.204 of 1995 and the appellants in the appeal in A.S.S.R.No.17922 of 2005, on the file of the Principal District Court, Coimbatore. The civil revision petitioners have filed an Interlocutory Application in I.A.No1055 of 2005, praying to condone the delay of 2186 days in filing the appeal to set aside the preliminary decree dated 19.11.1997 in O.S.No.204 of 1991 under Section 5 of Limitation Act.
(2.) In the said condone delay petition, the revision petitioners have inter alia stated that the respondents/plaintiffs have filed the suit in O.S.No.204 of 1991, on the file of the Sub-Court, Coimbatore for the relief of partition etc., There are four items of agricultural lands described in Schedule-A and house building described in Schedule-B. The respondents claimed half share in the entire properties. The petitioners contended that in Item No.1 of Schedule-A viz. S.F.No.120B, measuring an extent of 7.45 Acres. Out of which 3 Acres were sold to the deceased, first petitioner/first defendant, as per Ex.B3, dated 24.11.1961 and in the balance land an extent of 2.20 Acres was bequeathed in his favour as per Will dated 11.04.1969 and hence, the balance available for division is only 2.25 Acres. The lower Court accepted the sale deed, Ex.B3 and Will, Ex.B5. While reducing the extend under due the above said document, only the extend mentioned in the Will was deducted and inadvertently omitted to deduct 3 Acres conveyed under Sale Deed. Similarly, as per the Will Ex.B5, half of the property was bequeathed in favour of the deceased first defendant. Having given a finding in our favour that the Will is true and valid, inadvertently omitted to deduct the half portion with regard to Schedule-B.
(3.) The second petitioner submitted that the first defendant died on 05.12.1996. Further, he was sick and handicapped, hence, he could not contact his Advocate to know about the result of the case. The preliminary decree was passed on 19.11.1997. Later on, the second petitioner received notice in the final decree proceeding. Thereafter, he contacted his Advocate, who after perusing the Judgment and Decree advised him to file a petition under Section 152 of C.P.C. To amend the decree and accordingly I.A.No.723 of 2001 was filed in order to amend the decree. Enquiry was conducted in the above petition and the same was dismissed on 09.10.2001 on the ground that the decree alone cannot be amended. Immediately, he filed another petition in I.A.No.1617 of 2004 to amend the Judgment and Decree passed in O.S.No.204 of 1991. The learned District Munsif erroneously dismissed his petition. Thereafter another I.A.No.1617 of 2004 was filed to amend the Judgment and Decree, after three years. It was also contested on the ground that since no appeal had been filed against the preliminary decree or reviewed, no such petitioner will lie.