K.MARIMUTHU Vs. P.RENGARAJU

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order allowing the petition filed by the respondents to condone the delay of 686 days in filing a petition to set aside the ex parte that was passed in O.S.No.7 of 2011 before the Additional Subordinate Court, Thanjavur.

(2.) The brief facts that are necessary for the disposal of the Civil Revision Petition are as follows: 2.1.The revision petitioner, as plaintiff, filed a suit for partition and separate possession of his 1/6 share in the suit scheduled properties and for other consequential reliefs. The said suit was decreed ex parte by a judgment and decree dated 12.12.2011. Thereafter, the revision petitioner filed an application for final decree and notice was also served on the said proceedings. Later an Advocate Commissioner was appointed at the instance of the revision petitioner in I.A.No.206 of 2012 and the Commissioner inspected the property on 29.09.2010 and submitted a report on 01.02.2014. It was only after the Commissioner submitted the report, the respondents filed a petition to set aside the ex parte decree in O.S.No.7 of 2011 along with a petition under Section 5 of the Limitation Act to condone the delay of 686 days in filing the petition to set aside the ex parte decree. The said petition under Section 5 of the Limitation Act to condone the delay of 686 days was allowed on terms. Aggrieved by the same, the revision petitioner has preferred the above Civil Revision Petition.

(3.) It is not in dispute that the decree in O.S.No.7 of 2012 was decreed ex parte by a judgment and decree dated 12.12.2011. It is true that there is considerable delay in filing a petition to set aside the ex parte decree. It is also true that the application was filed after filing the petition for final decree. However, in the affidavit filed in support of the petition before the lower Court, the respondents have explained the delay by referring to the fact that they approached their Advocate for filing necessary application and that he was not seriously committed to protect the interest of the respondents in diligently prosecuting the matter and to get a disposal of the suit on merits. It is also admitted that the respondents have engaged some other Advocate and filed a petition to set aside the ex parte decree with a delay as they have lost confidence in the Counsel who was engaged by them earlier. The long delay was therefore attributed because of the callous negligence of the Advocate who appeared for the respondents before the lower Court.