JACOB NIXON Vs. NIRMALA

JUDGEMENT

(1.) The Appellant is the decree holder. The Appellant filed O.S. No. 170 of 2005 on the file of the Subordinate Court, Kancheepuram for specific performance of an Agreement of Sale dated 15.4.2005 executed by the Respondents. An ex parte decree was passed in the Suit on 11.8.2006. Thereafter, the Appellant filed E.P. No. 2 of 2009 to execute the decree and on 12.10.2009 an ex parte order was passed directing the Appellant to produce the draft Sale Deed. Thereafter, the Respondents herein who are the judgment-debtors filed I.A. No. 49 of 2009 in O.S. No. 170 of 2005 under Section 5 of the Limitation Act to condone the delay in filing the Application to set aside the ex parte decree dated 11.8.2006. The Respondents also filed E.A. No. 444 of 2009 to set aside the order passed in E.P. No. 2 of 2009 dated 12.10.2009. The Court below, namely, the Sub-Court, Kancheepuram dismissed the I.A. No. 49 of 2009 as well as E.A. No. 444 of 2009 filed by the Respondents by order dated 23.4.2010. The Respondents herein filed C.R.P. (NPD) No. 1771 of 2010 before this Court challenging the order passed in I.A. No. 49 of 2009 and this Court allowed the Revision and condoned the delay by order dated 27.9.2010 and the same was also confirmed by the Hon'ble Supreme Court in S.L.P.(Civil) No. 3678 of 2011. As the delay has been condoned, the Respondents herein filed I.A. No. 510 of 2011 to set aside the ex parte decree passed in O.S. No. 170 of 2005 and that was dismissed and aggrieved by the same the Respondents filed C.M.A. No. 3 of 2012 before the District Court II, Kancheepuram. The Respondents also filed C.M.A. No. 93 of 2010 before the District Court II, Kanchipuram challenging the order passed in E.A. No. 444 of 2009 and the learned District Judge II, Kancheepuram allowed the C.M.A. No. 93 of 2010 and aggrieved by the same, this Second Appeal is filed by the Appellant.

(2.) It is submitted by the learned Counsel appearing for the Appellant that after an ex parte decree was passed in O.S. No. 170 of 2005, the Respondents sold the property on 20.12.2006 and therefore, as on date they have no subsisting interest over the suit property and hence, they have no right to challenge the ex parte decree or challenge the Execution proceedings initiated by the Appellant to execute the decree passed in O.S. No. 170 of 2005. Therefore, the Respondents have no locus standi to file E.A. No. 444 of 2009 to set aside the order passed in E.P. No. 2 of 2009 and therefore, the Appeal has to be allowed and he also relied upon the judgment of this Court rendered in C.R.P.(NPD) No. 1207 of 2011, dated 11.4.2011 between A. Mary and another v. A. Fathima and another, and another judgment of this Court rendered in C.M.S.A. No. 11 of 2010, dated 18.2.2011 between Thangeswari and others v. Thirumalvalavan and others,2011 2 CTC 149. He therefore submitted that the Appeal has to be allowed and the Transfer Petition filed by the Respondents to transfer the C.M.A. No. 3 of 2012 on the file of the District Court II, Kancheepuram to this Court to be tried along with this C.M.S.A. is liable to be dismissed.

(3.) The learned Counsel appearing for the Respondents in this Second Appeal submitted that the Respondents have filed I.A. No. 510 of 2011 to set aside the ex parte decree passed in O.S. No. 170 of 2005 and though the application was filed after a delay of 389 days, the Application to set aside the ex parte decree was passed along with the Application to condone the delay and the Court below numbered the Application to condone the delay as I.A. No. 49 of 2009 and initially the delay was not condoned by the Trial Court and this Hon'ble Court set aside the order in C.R.P.(NPD) No. 1771 of 2010 and allowed the Revision and condoned the delay and the same was confirmed in S.L.P.(Civil) No. 3678 of 2011. Thereafter, the Application to set aside the ex parte decree was numbered as LA. No. 510 of 2011 and that was dismissed and aggrieved by the same, the Respondents filed C.M.A. No. 3 of 2012 pending before the District Court II, Kancheepuram. He, therefore, submitted that in the event of C.M.A. No. 3 of 2012 being allowed, then the ex parte decree passed in O.S. No. 170 of 2005 will be set aside and the Appellant cannot execute the decree and therefore the Transfer Petition was filed to transfer the C.M.A. No. 3 of 2012 to this Court to be heard along with this Second Appeal. He further submitted that the Respondents have sold the property to the third parties and in law they are bound to make good the title to the third parties and therefore, it cannot be stated that the Respondents have got no interest over the suit property. He, therefore, submitted that the judgments relied on by the learned Counsel for the Appellant cannot be applied to the facts of this case and having regard to the fact that the delay in filing the Application to set aside the ex parte decree was condoned, the Court below ought to have allowed the Application to set aside the ex parte decree and hence, the C.M.S.A. No. 9 of 2012 has to be dismissed.