M. SELVARAJ Vs. S. SUBRAMANIAN

JUDGEMENT

(1.) The revision petitioner has come forward with this Civil Revision Petition challenging the Order dated 30.04.2013 passed in E.A. No. 1274 of 2013 in E.P. No. 428 of 2011 in O.S. No. 2610 of 2003 on the file of the X Assistant Judge, City Civil Court, Chennai by which the petition filed by him under Order XXI Rule 105 (3) read with Section 5 of the Limitation Act to condone the delay of 332 days in filing an application to set aside the exparte order passed in the Execution Petition was dismissed.

(2.) The learned counsel for the revision petitioner would contend that the respondent herein has filed the suit in O.S. No. 2610 of 2003 for specific performance of the agreement dated 14.07.2000. The suit was decreed on 30.01.2006. However, it was contended on behalf of the revision petitioner that the revision petitioner was not kept informed about the decree passed in the suit or the need to prefer an appeal by his lawyer. Only after much perseverance, the revision petitioner filed an appeal before this Court with a petition for condonation of delay and the appeal was dismissed. Since the revision petitioner has pursued his remedy before this Court there is a delay in filing the application to set aside the exparte order in the execution petition. According to the counsel for the revision petitioner, even in the execution petition notice was not served on the revision petitioner and service of notice was not in accordance with Order V Rule 20 of CPC. Therefore, the learned counsel for the revision petitioner would contend that the delay is neither wilful nor wanton and such delay has to be condoned. However, in the course of argument, the learned counsel for the revision petitioner submits that the order passed in the execution petition itself is vitiated by fraud, even though it was not raised before the trial court. It is further contended that the revision petitioner is having half share in the plaint schedule mentioned property and therefore the decree could not be executed.

(3.) The learned counsel for the respondent would contend that the suit was filed in the year 2003 and it was decreed on 30.01.2006. The decree passed in the suit was not an exparte decree and it was a contested decree. The main defence raised in the suit was that the suit agreement was not executed in accordance with law, it was vitiated by fraud and it is a document created for the purpose of filing the suit. It was also a defence raised in the suit that there was no consideration received by the defendant/revision petitioner herein. The trial court, on analysis of oral and documentary evidence decreed the suit by concluding that the suit agreement of sale is valid and the consideration was duly received by the defendant/revision petitioner herein. The trial court also held that the plaintiff/respondent herein was always ready and willing to perform his part of the obligation especially when the plaintiff/ respondent herein has filed an application and deposited the balance sale consideration of Rs.1,00,000/ - on 31.07.2008. As against the order permitting the plaintiff/respondent herein to deposit the amount, an appeal was filed before this Court in AS SR No. 81776 of 2009 with a delay of 1042 days in filing the same. During the pendency of the appeal, the draft sale deed was filed, for which the defendant/revision petitioner has not raised any objection. Thereafter, the sale deed itself was executed and delivery was taken on 04.10.2013. The defendant/revision petitioner has also filed an application to review the decree passed in the suit and that was also dismissed. Thereafter, E.A. No. 1207 of 2012 was filed for removal of obstructions and that was allowed and delivery was ordered on 29.07.2013. During the course of delivery proceedings, the tenant in the property was set up as an Obstructor and that was overruled and sale deed itself was executed on 02.08.2012.