M. RANGASAMY Vs. M. GIRIJA

JUDGEMENT

(1.) This Civil Revision Petitions is directed as against the fair and decreetal order dated 07.06.2018 passed by the learned Subordinate Judge, Udumalaipettai, in I.A.No.346 of 2014 in O.S.No.1 of 2011, thereby dismissing the petition to condone the delay in filing the petition to set aside the exparte decree.

(2.) The petitioners are the legal heirs of the original deceased defendant and the respondent is the plaintiff. The respondent filed suit for specific performance in O.S.No.1 of 2011 as against the deceased defendant. After receipt of the summon, the original deceased defendant engaged counsel on his behalf and failed to file any written statement. Therefore, he was set exparte and exparte decree was passed on 30.06.2011. On the strength of the exparte decree, the respondent filed execution petition in E.P.No.163 of 2011 and in the execution proceedings, notice was duly served on the deceased original defendant. However he failed to appear before the execution Court and he was set exparte before the execution Court on 26.09.2012. Therefore, he was instructed to file petition to set aside the exparte decree passed in the execution Court and the same was allowed by an order dated 21.10.2013 in E.A.No.150 of 2012. After allowing the said petition, the original defendant died and the legal heirs of the deceased defendant filed petition to set aside the exparte decree passed in the suit along with the condone the delay petition in I.A.No.346 of 2014 for condoning the delay of 885 days. The said petition was dismissed by the Court below and aggrieved by the same, the present Civil Revision Petition.

(3.) Mr.V.Raghavachari, learned counsel appearing for the petitioners submitted that originally, the deceased defendant entered into an agreement for sale on 22.06.2007. Thereafter, it was cancelled by the cancellation of agreement for sale deed on 11.12.2009. Again on the same day, the respondent entered into another agreement for sale to purchase the suit property for the total sale consideration of Rs.8,00,000/-, in which a sum of Rs.7,40,000/- received by the deceased defendant. Thereafter, the deceased defendant failed to perform his part of the contract and the respondent filed the suit for specific performance. In the said suit, the respondent never whispered about the earlier agreement for sale in respect of the suit property. Further, on receipt of the summons, the deceased defendant engaged one Nagaraj Rao, Advocate on his behalf before the trial Court. He entered his appearance and failed to file any written statement before the trial Court. Therefore, the deceased defendant was set exparte and the exparte decree was passed on 30.06.2011.