RAJIV TIMOTHY Vs. PARASURAM

JUDGEMENT

(1.) The present civil revision petition is filed challenging the order of the court below in dismissing the application filed under Order 9 Rule 13 C.P.C.. The petitioner herein is the defendant in a suit for specific performance filed by the respondent. The said suit in O.S.No.32/2009 on the file of the sub Court, Chengalpet came to be decreed exparte on 10.06.2010. In pursuant to such exparte decree, the plaintiff filed execution petition and the Executing Court also ordered the same and consequently, the sale deed was executed by the Court. Thereafter, the E.P. was closed on 28.06.2011. It is the contention of the petitioner herein that he was not served with notice both in the suit as well as in the E.P. Therefore, he filed an application in I.A.No.334 of 2011 under section 5 of the Limitation Act seeking to condone the delay of 435 days in filing an application under Order 9 Rule 13 C.P.C. to set aside the exparte decree passed on 10.06.2010. After contest, the said application was allowed on 18.09.2012 subject to payment of cost of Rs.2,500/- to the respondent/plaintiff. It is stated that the cost has also been received by the plaintiff on 27.09.2012. The said order passed in I.A.No.334 of 2011 dated 18.09.2012 was not challenged by the respondent/plaintiff and thus, the said order has become final and binding on the parties. Thereafter, the application filed under Order 9 Rule 13 C.P.C. in I.A.No.332 of 2011 was taken up by the court. In the meantime, there was a change of the Presiding Officer at Chengalpet Sub Court. The learned Judge who heard the application rejected the same on the ground that the petitioner, instead of challenging the exparte order made in E.P., has filed the application under Order 9 Rule 13 C.P.C. to set aside the exparte decree that too, after conclusion of the E.P. The learned Judge has also taken note of the fact that the petitioner sold the property in favour of one third party and a suit in O.S.No.196/2011 has also been filed by the subsequent purchaser as against the purchaser of the present respondent/plaintiff. By taking note of all these facts, the learned Judge dismissed the application. Aggrieved against the same, the present civil revision petition is filed.

(2.) Heard the learned counsels appearing on either side.

(3.) The learned counsel for the petitioner submits that the court below is not justified in rejecting the application under Order 9 Rule 13 C.P.C. while allowing the application under section 5 of the Limitation Act especially, when the reasons given under both the applications are one and the same. It is his contention that no notice was served on the petitioner both in the suit as well as in the execution proceedings.