RATHINATHAMMAL Vs. MUTHUSAMY

JUDGEMENT

(1.) The revision petitioner is the 11th defendant in the suit O.S.No.50 of 1988 on the file of the Sub Court, Pattukkottai. The 11th defendant filed I.A.No.259 of 1998 under Section 5 of the Limitation Act, to condone the delay of 545 days in filing the petition to set aside the ex parte decree dated 7.10.1991 in that suit. The petition after contest was dismissed as per order dated 9.10.1998. The 11 th defendant has challenged the said order in this revision.

(2.) In the affidavit filed in support of the petition I.A.No.259 of 1998, it is stated that the first respondent/plaintiff filed the suit for declaration in respect of the plaint 'A' and 'B' schedule properties and also for possession of the plaint 'B' schedule property. The suit was originally filed against the defendants 1 to 7 on 19.9.1987 and as per order dated 26.11.1990 made in I.A.No.654 of 1990 the defendants 8 to 12 were added. But the revision petitioner/11th defendant was not served with suit summons. The records were created as if the suit summons was served upon her and was set ex parte and ex parte decree was passed in the suit on 7.10.1991. She came to know about the ex parte decree only after receipt of notice on 26.11.1996 in Execution Petition filed by the plaintiff for delivery of the plaint 'B' schedule property. She entered appearance though her advocate Vaithyanathan of Pattukkottai to whom she requested to take step to set aside the ex parte decree. The said advocate only filed vakalath in execution petition, but not filed counter, because of which, delivery was ordered in the execution petition. She came to know about the same when the Court bailiff came to hand over possession. Since there was summer vacation, she could not file the petition immediately. On equiry she came to know that records have been created as if she received suit summons after signing on 17.1.1991, on which date she was not in the village and she did not sign in the suit summons as "Rethinambal"(buj;jpdk;ghs;). She used to sign only as "Rethinam"(buj;jpdk;). She does not know the witness who has signed as "Sundaram" in the summons, and no such person is residing in Kottaikulam street. The signature in the summons has been forged. In the circumstances, there have been delay of 545 days in filing the petition to set aside the ex parte decree dated 17.1 0.1991.

(3.) The petition was resisted in the counter filed by the first respondent/plaintiff, in which it is stated that notice was served to the revision petitioner/11th defendant and she remained ex parte after receiving the suit summons. The suit was decreed only after contest by other defendants. The suit was decreed for the relief of declaration in respect of 'A' and 'B' schedule properties and also possession in respect of 'B' schedule property. The execution petition for delivery of possession was filed in December, 1996. The revision petitioner/11th defendant after receiving notice in execution petition engaged advocate and since her counsel informed that no counter was filed, delivery was ordered on 23.2.1998. Since it was resisted delivery could not be effected then. Again on the petition filed for police help, etc., and to deliver in the presence of Village Administrative O ficer, it was ordered and that time also delivery could not be effected stating that there have been house in the suit property. Again the petition was filed to deliver possession after removing the thatched house and by allowing the petition delivery was ordered. Now at that stage, the petition was filed to condone the delay of 545 days in filing the petition to set aside the ex parte decree. The other averments in the petition have been denied. Each day delay has not been satisfactorily explained. The petition was also resisted that since the suit was decreed after contest, the remedy available to the revision petitioner/11th defendant is only to prefer appeal in this Court.