RUKMANI Vs. RANGANAYAKI

JUDGEMENT

(1.) BY consent of both the counsel the C.R.P. itself is taken up for final disposal. The petitioner is the second defendant in O.S. No.36 of 1990 on the file of the First Additional District Munsif, Coimbatore. The respondent herein filed the said suit for partition and allotment of half share in the plaint schedule properties. In the said suit an ex parte preliminary decree was passed as early as 29.4.1992. The petitioner filed I.A. No.2420 of 1996 to condone the delay of 1590 days in filing the petition underO.9, Rule 13, C.P.C. and for setting aside the ex parte preliminary decree stating that her husband who was the first defendant in the suit died on 4.11.1992. He was looking after the case and further her counsel also died. Hence the petitioner was not aware about the ex parte decree and she came to know about the same on 24.8.1996 only when she received the notice in I.A. No.1901 of 1996 filed by the respondent for passing the final decree. Immediately on coming to know of the same, the petition has been filed for condoning the delay of 1590 days along with the petition for setting aside the ex parte preliminary decree. The said application was dismissed by the Court below. The present revision has been filed against the same.

(2.) IT is the contention of the learned counsel for the petitioner that the petitioner purchased the property under a registered sale deed from one Kondasamy Naidu on 9.8.1956. The respondent filed the suit on the basis of a Will dated 28.6.1956 executed by the said Kondasamy Naidu. The respondent did not produce the original Will before Court. The counsel for the petitioner who was looking after the case of the petitioner died without informing about the ex parte decree in the suit to the husband of the petitioner, the first defendant in the suit. Subsequently the first defendant, the husband of the petitioner also died within a short period and the petitioner was in dark about the litigation. She came to know about the ex parte decree only on receipt of the summons in the final decree proceeding. The petition has been filed immediately thereafter to condone the delay in filing the petition for setting aside the ex parte preliminary decree as well as to set aside the ex parte preliminary decree. The Court below had dismissed the petition only on the ground that the petitioner did not let in any evidence to establish the cause for the delay, which reason cannot be sustained.

(3.) BEFORE entering into the discussion on merits, it is worthwhile to refer the two recent judgments which lays down the principle for consideration of the petition under Sec.5 of the Limitation Act. A Division Bench of this Court in the case of Subramaniam v. Tamil Nadu Housing Board (2000)3 MLJ. 181 after considering several judgments of various High Courts as well as the Apex Court has held as follows: