VAJJIRAVELU ASARI DIED Vs. ARULMIGHU SRI ARUNACHALESWARAR DEVASTHANAM

JUDGEMENT

(1.) THE defendant in O.S.No.684 of 1983 on the file of Additional District Munsif Court,Thiruvannamalai preferred this revision, aggrieved against the orders passed in I.A.No.1224 of 1995 dated 27.6.1997. After the filing of this revision petitions, he died and petitioners 2 to 10 were impleaded as legal heirs.

(2.) THE case in brief is as follows: THE respondent/plaintiff filed a suit against the first petitioner and the suit was decreed ex parte on 27.4.1969. THE first petitioner filed an application underO.9, Rule 13 of Civil Procedure Code to set aside the ex parte decree and also filed an application under Sec.5 of the Limitation Act to condone the delay of 2062 days. On 27.4.1989 the first petitioner came to the court and he was suffering from ulcer as well as stomach pain and as he was short of hearing, when he was called he could not be present and as such, the ex parte decree was passed. He gave instructions to the clerk of the counsel to file a petition. Later, the first petitioner received the execution notice and he gave instructions to the counsel to file counter. THE respondent also took possession of the property through court on 27.2.1995. He again contacted the counsel and he was advised to compromise with the respondent. He contacted the respondent and although they promised to give the place, they failed to comply the same. THE rent upto 1990 has been paid to the respondent and unless the delay is condoned he would be put to much loss and hardship.

(3.) POINT: It is not in dispute that in the suit filed by the respondent, the ex parte decree was passed on 27.4.1989. Learned counsel for the petitioners contended that the first petitioner was not keeping well and although he was present on the said date, he could not appear before the court due to short of hearing and he had instructed the clerk of the counsel to file necessary application. Later, the first petitioner also received the execution notice and be gave instructions to the course to file counter. However, on 27.2.1989 admittedly the respondent had taken possession of the property and now it is let out to third party and the third party is in possession and enjoyment of the case.