K. KANTHA RAO Vs. MURUGESA REDDY

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order dated 12.01.2010 made in I.A. No. 60 of 2007 in O.S. No. 57 of 2003 passed by the learned Subordinate Judge, Thiruvallur, by which the application filed by the revision petitioner for condoning the delay of 703 days in filing an application to set aside the exparte decree, was dismissed.

(2.) The respondent herein, as plaintiff, has filed the suit in O.S. No. 57 of 2003 for specific performance of the agreement dated 25.04.2001 and for possession before the learned Subordinate Judge, Thiruvallur. The suit was decreed exparte on 16.09.2003 for non-appearance of the revision petitioner/defendant. To set aside the exparte decree dated 16.09.2003, the revision petitioner has filed I.A. No. 60 of 2007 under Section 5 of the Limitation Act to condone the delay in filing the application to set aside the exparte decree dated 16.09.2003. The trial court refused to condone the delay and dismissed the application against which the present Civil Revision Petition is filed.

(3.) The learned counsel for the revision petitioner would contend that the court below did not take into consideration that the defendant/revision petitioner herein was not served any notice or summons in the suit. For the first time, a notice was served on the petitioner in the Execution Petition filed by the respondent before the District Munsif Court, Tiruttani. The learned counsel for the revision petitioner brought to the notice of this Court that in the affidavit filed in support of I.A. No. 60 of 2007, the revision petitioner has categorically stated that he is permanently residing at Bangalore, a chronic cardiac patient and he was advised to take complete bed rest. Therefore, according to the counsel for the revision petitioner, immediately after receipt of the notice in the Execution Petition, the revision petitioner could not file the application to set aside the exparte decree and therefore, the delay is neither wilful nor wanton. According to the counsel for the revision petitioner, the court below, without taking note of the above reasons assigned by the revision petitioner has summarily rejected the application thereby refused to give an opportunity to the revision petitioner to defend the suit on merits. The learned counsel for the petitioner also would contend that the learned Subordinate Judge, Thiruvallur has no jurisdiction to pass the impugned order and it is only the District Munsif, Tiruttani has got jurisdiction to entertain the application due to enhancement of the pecuniary jurisdiction and therefore also, the impugned order passed by the court below is liable to be set aside.