P CHANDRASEKARAN Vs. A S CHINNAMUTHU

JUDGEMENT

(1.) This Civil Revision Petition is directed against the fair and decretal order dated 15.10.2001 passed by the Additional Subordinate Judge. Salem, in I.A. No. 484 of 2001 in O.S. No. 524 of 1993.

(2.) The respondent/plaintiff filed a suit for partition and the revision petitioner is the first defendant in the suit. The first defendant was set ex parte on 31.7.1997. Hence, he filed an application to set aside the ex parte decree but there is a delay in filing the said petition and application under Section 5 of the Limitation Act was filed to condone the delay and the same was dismissed by the court below by order dated 15.10.2001 and the same is challenged in this Civil Revision Petition.

(3.) The petitioner has filed an affidavit in support of the petition to condone the delay wherein he has stated that he had engaged an advocate to defend his case. He has been under the bonafide impression that he is defending the case diligently but the said advocate has shifted his practise to Madras and he was not defending the case of the defendant. Only in August 1999, the first defendant came to know that he was set ex parte on 31.7.1997 itself and preliminary decree was passed. An application to pass a final decree was also filed; that thereafter he has engaged another advocate who expressed his inability to file an application to set aside the preliminary decree on the ground that back case papers were not available and therefore he has filed an application in the final decree proceedings to set aside the ex parte order passed in the final decree and the said application was dismissed on 18.8.2000; that thereafter the first defendant filed application to set aside the ex parte decree passed on 31.7.1997 and there was a delay of 1397 days and application under section 5 of the Limitation Act was filed to condone the delay.